August 2020
TABLE OF CONTENTS

COMMISSION DECISIONS
08-14-20

JAMES C. SCOTT, employed by
MILL BRANCH COAL
CORPORATION and DONNIE B.
THOMAS, employed by MILL
BRANCH COAL CORPORATION

VA 2018-0103

Page 481

08-17-20

M-CLASS MINING, LLC

LAKE 2018-0188-R

Page 491

08-24-20

THE DOE RUN COMPANY

2015-0318-RM

Page 521

08-28-20

AMERICAN AGGREGATES OF
MICHIGAN, INC.

LAKE 2018-0340

Page 570

08-28-20

HOPEDALE MINING, LLC

LAKE 2019-0149

Page 589

COMMISSION ORDERS
08-21-20

THE MONONGALIA COUNTY
COAL COMPANY

WEVA 2015-0509

Page 621

ADMINISTRATIVE LAW JUDGE DECISIONS
08-04-20

THEODORE OESAU v. ROGERS
GROUP, INC.

CENT 2019-0276-DM Page 625

08-04-20

SEC. OF LABOR O/B/O WILLIAM
R. WHITMORE v. YAGER
MATERIALS CORP.

KENT 2020-0116-DM Page 641

08-07-20

KENAMERICAN RESOURCES, INC. KENT 2013-0211

i

Page 659

08-12-20

PEABODY MIDWEST MINING,
LLC

ii

LAKE 2017-0450

Page 663

No review was granted or denied during the month of August 2020.

iii

COMMISSION DECISIONS

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

August 14, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
JAMES C. SCOTT, employed by
MILL BRANCH COAL CORPORATION

Docket Nos. VA 2018-0103
VA 2018-0104

and
DONNIE B. THOMAS, employed by
MILL BRANCH COAL CORPORATION

BEFORE: Rajkovich, Chairman; Jordan, Young, Althen, and Traynor, Commissioners
DECISION
BY THE COMMISSION:
These consolidated civil penalty proceedings arise under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act” or “Act”), and involve penalties
the Secretary of Labor seeks to assess against James C. Scott and Donnie B. Thomas pursuant to
section 110(c) of the Mine Act, 30 U.S.C. § 820(c).1 For the reasons that follow, we vacate the
order of the now-retired Judge dismissing the proceedings (41 FMSHRC 563 (July 2019) (ALJ)),
and remand the cases to the Chief Administrative Law Judge for its reassignment and the
resumption of proceedings.
1

Section 110(c) of the Mine Act provides:
Whenever a corporate operator violates a mandatory health
or safety standard . . . , any director, officer, or agent of such
corporation who knowingly authorized, ordered, or carried out
such violation . . . shall be subject to the same civil penalties, fines,
and imprisonment that may be imposed upon a person under
subsections (a) and (d) [that provide for operator civil and criminal
penalties, respectively].

30 U.S.C. § 820(c).

42 FMSHRC Page 481

I.
Factual and Procedural Background
On April 7, 2015, Scott and Thomas were employed by Mill Branch Coal Corporation at
its North Fork #6 Mine as Superintendent and a shift foreman, respectively. The Secretary
alleges that a dangerous inundation of water in a section of that mine that day was discovered by
a Mine Safety and Health Administration (“MSHA”) inspector. The next day, MSHA issued four
citations and orders to Mill Branch in connection with the inundation, including Order No.
8178613, alleging that the inundation was not reported to MSHA within 15 minutes, as required
by 30 C.F.R. § 50.10(d).1 At the same time, MSHA began investigating the liability of the two
miners for at least two of the violations.
Mill Branch later filed timely notices of contest with respect to the four orders and
citations. Thereafter, on August 3, 2015, Mill Branch entered into bankruptcy proceedings.
In letters dated October 27, 2015, MSHA’s Norton (VA) District Manager informed each
of the two miners that MSHA was “proposing to assess an individual civil penalty against you as
an agent of Mill Branch” for the violation cited in Order No. 8178613 as well as for violating 30
C.F.R. § 75.1502 (failure to follow the emergency evacuation and fire fighting plan), one of the
four cited violations. MSHA went on to explain that “[t]his proposed penalty is based on
information obtained during a special investigation conducted under the Mine Act . . . .”2
Despite the foregoing letters, MSHA, when it proposed penalties against Mill Branch in
January 2016 in Docket Nos. VA 2016-105 & -106 for the four violations connected to the
inundation, did not also propose to assess a penalty against either miner. Furthermore, in July
2016, prompted in large part by Mill Branch’s pending bankruptcy proceeding, the Secretary and
Mill Branch agreed to settle all four of the penalties, including the penalty for Order No.
8178613. Based upon the Secretary’s motion for settlement, as well as his subsequent
supplemental representations discussed below, a Commission Judge ordered Mill Branch to pay
$33,071 for that violation, a reduction of 50 percent from the amount that the Secretary had
proposed. See Decision Approving Settlement, Docket Nos. VA 2016-105, et al. (Aug. 3, 2016).
Twenty months later, on April 12, 2018, the Secretary proposed penalties against Scott
and Thomas of $4,000 and $3,500, respectively. The Secretary alleged that the two miners, as
agents of Mill Branch, knowingly authorized, ordered, or carried out the violation of section
50.10(d) set forth in Order No. 8178613. A different Judge was assigned to the miners’ cases.
1

Section 50.10(d) requires operators to notify MSHA within 15 minutes of the
occurrence of an “accident.” An “accident” is defined to include “[a]n unplanned inundation of a
mine by a liquid or gas.” 30 C.F.R. § 50.2(h)(4).
2

The Secretary did not enter copies of the letters into the record below; rather, they were
appended by the Secretary to his reply brief to the Commission. In that same brief, the Secretary
also disclosed that later in 2015, the miners had availed themselves of the opportunity MSHA
offered in the letters to confer with the agency regarding their roles in the violations.

42 FMSHRC Page 482

Upon eventually learning some of the background of the proceedings, the Judge issued a
Show Cause Order. In that order, the Judge focused on the timing of the section 110(c) penalty
proposals, in relation both to the much earlier settlement of the penalties against the operator and
to the issuance of Order No. 8178613, three years previously. The Judge required the Secretary
to supply information justifying such a course of conduct in the cases. 41 FMSHRC 227, 229-30
(Mar. 2019) (ALJ). The Secretary replied that the investigation ended on April 4, 2018, and
penalties were proposed eight days later on April 12, 2018.
The Judge was not satisfied with the substance of the Secretary’s responses. The Judge
rejected the Secretary’s contention that the Commission can only review the appropriateness of
the amount of time that lapsed between the end of the MSHA 36-month investigation of the
miners and the agency’s proposal of penalties against them. Because he found that the Secretary
had failed to provide a justification for such a lengthy investigation and that the Secretary had
failed to demonstrate that the notices of civil penalty were issued within a reasonable time as
contemplated by the Mine Act, the Judge dismissed the proceedings. 41 FMSHRC at 565-66.
The Commission granted the Secretary’s subsequent petition for discretionary review of
the dismissal order.
II.
Disposition
This case involves an issue that flows from the dual enforcement scheme of the Mine
Act. The Secretary is charged with, among other things, inspecting mines, investigating health
and safety violations that are discovered, and proposing penalties for those violations. When an
operator or miner contests an alleged violation or the penalty proposed for it, the Commission is
then tasked with reviewing the proffered violation and proposed penalty, including assuring due
process in adjudicating the matter and the ultimate assessment of any penalty.

42 FMSHRC Page 483

A.

Applicable Law

Section 105(a) of the Mine Act sets out the Secretary’s obligations regarding the proposal
of penalties, including the timeliness of their proposal, as well as the finality of a penalty not
contested.3 Section 105(d) then explains the role that the Commission is to play in the event of a
timely contest of any enforcement action by the Secretary, including the contest of a proposal of
a penalty.4
One of the primary reasons the Mine Act was enacted was to greatly improve upon the
civil penalty assessment, adjudication, and collection procedures of its main predecessor statute,
the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1976) (“Coal
3

Section 105(a) states in pertinent part:
If, after an inspection or investigation, the Secretary issues
a citation or order under section 104, he shall, within a reasonable
time after the termination of such inspection or investigation,
notify the operator by certified mail of the civil penalty proposed
to be assessed under section 110(a) for the violation cited. . . . . If,
within 30 days from the receipt of the notification issued by the
Secretary, the operator fails to notify the Secretary that he intends
to contest the citation or the proposed assessment of penalty, and
no notice is filed by any miner or representative of miners under
subsection (d) of this section within such time, the citation and the
proposed assessment of penalty shall be deemed a final order of
the Commission and not subject to review by any court or agency.

30 U.S.C. § 815(a) (emphasis added).
4

Section 105(d) states:
If, within 30 days of receipt thereof, an operator of a coal or
other mine notifies the Secretary that he intends to contest the
issuance or modification of an order issued under section 104, or
citation or a notification of proposed assessment of a penalty
issued under subsection (a) or (b) of this section, . . .or any miner
or representative of miners notifies the Secretary of an intention to
contest the issuance, modification, or termination or any order
issued under section 104, . . . the Secretary shall immediately
advise the Commission of such notification, and the Commission
shall afford an opportunity for a hearing . . . , and thereafter shall
issue an order, based on findings of fact, affirming, modifying, or
vacating the Secretary’s citation, order, or proposed penalty, or
directing other appropriate relief. . . . .

30 U.S.C. § 815(d).

42 FMSHRC Page 484

Act”). S. Rep. No. 95-181, at 43-45 (1977), reprinted in Senate Subcomm. on Labor, Comm. on
Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 631-33
(1978) (“Legis. Hist.”); see generally Donovan v. Phelps Dodge Corp., 709 F.2d 86, 91 (D.C.
Cir. 1983). There was no language addressing the timing or timeliness of the assessment process
in section 109(a)(1) of the Coal Act, pursuant to which MSHA’s immediate predecessor, the
Mine Enforcement and Safety Administration of the Department of the Interior, proposed
penalties against mine operators. Nor did the Coal Act demand timely action on the part of the
predecessor to the Commission, the Board of Mine Operations Appeals, a creation of that same
Department. Consequently, the Coal Act penalty procedures were “lengthy, and often repetitive,”
becoming ones which “encourage[d] delaying the ultimate payment of civil penalties.” S. Rep.
No. 95-181, at 44, Legis. Hist. at 632.
In drafting the Mine Act, the responsible Senate Subcommittee stated that “[t]o be
effective and to induce compliance, civil penalties, once proposed, must be assessed and
collected with reasonable promptness and efficiency. To achieve this objective S. 717 contains a
number of significant departures from the present practice under the Coal Act.” S. Rep. No.
95-181, at 43, Legis. Hist. at 631. Those departures, described as the “means by which the
method of collecting penalties is streamlined,” included that “civil penalties are to be assessed by
the . . . Commission rather than by the Secretary as prevails under the Coal Act . . . . Where a
penalty is contested, the normal proceedings for the hearing of cases by the Commission
controls.” S. Rep. No. 95-181, at 45-46, Legis. Hist. at 633-34. In creating the Commission, the
Committee stated that it “strongly believes that it is imperative that the Commission strenuously
avoid unnecessary delay in acting upon cases.” S. Rep. No. 95-181, at 48, Legis. Hist. at 636.
At the same time, the legislative history notes that when circumstances cause prompt
proposal of a penalty to not be possible, such event should not prevent imposition of a penalty.
Thus the Senate Report states, “there may be circumstances, although rare, when prompt
proposal of a penalty may not be possible, . . . the Committee does not expect that the failure to
propose a penalty with promptness shall vitiate any proposed penalty proceeding.” S. Rep. No.
95-181, at 34, Legis. Hist. at 622. Congress desired expeditious action but also anticipated that
speed is not achievable in all circumstances.
In a case interpreting the relevant statutory language, Secretary of Labor v. Twentymile
Coal Co, 411 F.3d 256 (D.C. Cir. 2005), involving a late-filed penalty proposal, the D.C. Circuit
focused on a two-pronged inquiry: (1) was the delay in proposing the penalty a reasonable one;
and (2) did the operator demonstrate prejudice from whatever delay in fact occurred? Id. at 262.
More recently, in Long Branch Energy, 34 FMSHRC 1984, 1990 (Aug. 2012), we explained
“that Commission enforcement of the filing time limits is a secondary consideration to the
primary purpose of section 105(d), i.e., ensuring prompt enforcement of the Act’s penalty
scheme.” See also Salt Lake Cty. Road Dep’t, 3 FMSHRC 1714, 1716 (July 1981)
(“considerations of procedural fairness to operators must be balanced against the severe impact
of dismissal of the penalty proposed upon the substantive scheme of the statute and, hence, the
public interest itself.”). In another case we also stated that “[w]hen reviewing a judge’s pre-trial
rulings,” such as the one the Judge made here in dismissing the proceedings, “the appropriate
standard of review to apply . . . is abuse of discretion, though any factual determinations he made
in arriving at his conclusion are subject to substantial evidence review.” Black Butte Coal Co., 25

42 FMSHRC Page 485

FMSHRC 457, 459-60 (Aug. 2003). “[T]he Commission cannot merely substitute its judgment
for that of the . . . [J]udge . . . . The Commission is required, however, to determine whether the
[J]udge correctly interpreted the law or abused his discretion and whether substantial evidence
supports his factual findings.” Asarco, Inc., 12 FMSHRC 2548, 2555 (Dec. 1990).
B.

The Judge’s Dismissal for the Alleged Failure to Comply with Section 105(a)

The Secretary argues that the Judge made numerous legal errors in his order dismissing
the two section 110(c) cases. He contends that his obligation to propose penalties “within a
reasonable time” occurs only “after the termination of [an] inspection or investigation.” PDR at
13 (citing 30 U.S.C. § 815(a)). He thus argues that the relevant time period in this case was eight
days. The two miners respond that the Judge properly required that the Secretary demonstrate
“adequate cause” for why it took three years for the penalties against them to be proposed, and
that substantial evidence supports the Judge’s conclusion that the Secretary failed to make such a
showing. They allege that the delay of more than three years from the issuance of the citation to
the operator to the issuance of the section 110(c) penalty proposals has prejudiced them.
The Judge based his dismissal of proceedings on our statement in Long Branch that “[i]n
addressing timeliness issues, . . . the Secretary is not free to arbitrarily ignore reasonable time
constraints that would ‘deny fair play to operators’ by ‘exposing operators to stale claims.’” 41
FMSHRC at 564 (quoting Long Branch, 34 FMSHRC at 1989). The Judge applied the remainder
of the Commission’s Long Branch analysis to the facts at hand. Because in the Judge’s view, the
Secretary failed to provide a justification for not proposing the 110(c) penalties until three years
after issuing Order No. 8178613, the Judge dismissed the proceedings. Id. at 564-65.5 This case,
however, does not hinge on application of Commission Procedural Rule 28, 29 C.F.R. § 2700.28.
The Secretary complied with Rule 28(a). Therefore, Rule 28 was not applicable and does not
provide a basis for dismissal.
The primary issue the Judge raised in his Show Cause Order is the timeliness of the
Secretary’s initial proposal of the section 110(c) penalties. We review his decision by looking
first at the statute and then at due process.
The most obvious statutory provision is section 105(a). As seen, it states that “[i]f, after
an inspection or investigation, the Secretary issues a citation or order under section 104, he shall,
within a reasonable time after the termination of such inspection or investigation, notify

5

Long Branch involved a specific procedural deficiency: a failure by the Secretary to
file a penalty petition within 45 days of receiving a timely notice of contest. In Long Branch, the
Commission expanded upon our earlier decision in Salt Lake and held that in such cases, a
Judge, before permitting proceedings to go further, can require the Secretary to provide
“adequate cause” for his failure to meet the 45-day time limit. 34 FMSHRC at 1989-91. The
Commission was careful to point out in Long Branch that it was interpreting and applying its
own regulation and thus had considerable legal leeway to craft the “adequate cause” standard. Id.
at 1989.

42 FMSHRC Page 486

the operator by certified mail of the civil penalty proposed to be assessed . . . .” 30 U.S.C. §
815(a) (emphasis added).6
Regardless of the length of time the Secretary may have taken to investigate the section
110(c) charges here,7 deference has been accorded the Secretary’s interpretation of section
105(a) that the time period subject to the reasonableness requirement in that provision begins
only upon the completion of the investigation necessary to support the penalty proposal. See
Twentymile, 411 F.3d at 261. Consequently, the Secretary explained that his investigations into
the liability of the two individual miners under section 110(c) for the section 50.10(d) violation
did not conclude until April 4, 2018. S. Resp. to Order to Show Cause at 1.
Thus, for present purposes, the period subject to the “reasonable time” requirement of
section 105(a) began on April 4, 2018 with the conclusion of the section 110(c) investigations
and ended with MSHA’s proposal of penalties on April 12, 2018 — a period of eight days. PDR
at 13-14. There is no question that, for purposes of section 105(a), the eight-day period of time
6

The Secretary correctly points out that section 105(a) goes on to refer only to penalties
proposed pursuant to section 110(a), which governs penalties imposed upon operators, not
individual miners. Given our holding here, we need not resolve the Secretary’s contention that,
by implication, the terms of section 105(a) do not govern penalties that the Secretary proposes to
assess against individual miners pursuant to section 110(c). We note, however, that both the
Secretary and the Commission have continually found it necessary to look to other provisions of
the Mine Act — such as sections 105(a) and section 105(d) set forth above, along with section
110 — to give effect to the summary provisions of section 110(c).
The Secretary also argues that, notwithstanding its “reasonable time” language, section
105(a) cannot be read to be a statute of limitations, so that by default 28 U.S.C. § 2462 applies to
all Mine Act civil penalty proceedings. That provision states in pertinent part that “[e]xcept as
otherwise provided by Act of Congress, an action, suit or proceeding for the enforcement of any
civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless
commenced within five years from the date when the claim first accrued . . . .” See, e.g., 3M Co.
v. Browner, 17 F.3d 1453, 1455 (D.C. Cir. 1994) (holding 28 U.S.C. § 2462 to apply because
civil penalty at issue there “contains no provision limiting the time within which the [federal
agency] must initiate the administrative action.”). Because of our holding here, we leave the
resolution of this argument to a future case.
7

Mine Act investigations are governed by section 103 of the Act, 30 U.S.C. § 813, which
contains no timeliness provision. Cf. 52 U.S.C. § 30107(a)(9) (providing that the Federal
Election Commission is “to conduct investigations . . . expeditiously”). Furthermore, an
investigation into a miner’s individual liability under section 110(c) for a violation is, in
particular, not perfunctory and thus may take time beyond that that is necessary to investigate the
operator for the violation. See Sedgman, 28 FMHSRC 322, 341 (June 2006) (Commissioners
Suboleski and Young) (characterizing as reasonable under section 105(a) the less than 11 months
of time between citation issuance and penalty proposal to the operator, given the section 110(c)
investigation that was also conducted).

42 FMSHRC Page 487

qualifies as “reasonable” for purposes of proposing a penalty. See Long Branch, 34 FMHSHRC
at 1991 n.11 (“Commission presumes that the Secretary’s agents generally act in good faith . . .
.”). Consequently, the Judge’s order dismissing these proceedings cannot be affirmed at this
juncture on the basis of section 105(a).8
Turning to the due process issue, the Commission has recognized that the “[t]he
fundamental requirement of procedural due process is the opportunity to be heard ‘at a
meaningful time and in a meaningful manner’ appropriate to the nature of the case.” Capitol
Cement Corp., 21 FMSHRC 883, 893 (Aug. 1999) (emphasis added) (quoting Mathews v.
Eldridge, 424 U.S. 319, 333 (1976). We note that the circumstances the miners’ cases present are
undoubtedly unusual.9 Cases against operators and related cases against individual miners “are
often consolidated for reasons of judicial efficiency . . . .” S. Resp. to Show Cause Order at 6.
Moreover, the Commission has recognized that there are common elements to operator and
individual miner liability cases, such as gravity. See Sunny Ridge Mining Co., 19 FMSHRC 254,
272 (Feb. 1997); see also Mize Granite Quarries, Inc., 34 FMSHRC 1760, 1764 (Aug. 2012)
(Judge’s “finding that the [operator’s] violation was not unwarrantable sufficiently explains why
in her view no penalties against the individuals should be assessed . . . .”). Should the miners
have suffered actual prejudice attributable to the unusual procedural path this case has traveled to
date, it is possible they have been denied due process. We remand this case back to the judge,
8

Chairman Rajkovich and Commissioner Althen note, separately, the following
observations. The only record of the conduct of the investigation after December 2015 presently
before us is the Secretary’s statement that MSHA issued the assessment eight days after the
Technical Compliance and Investigation Office sent a letter requesting proposal of assessments.
Thus, the current record precludes our determination of a number of issues. Those include:
whether section 105(a) applies to section 110(c) assessments; whether an investigation
terminates in MSHA’s absolute discretion; whether any person of interest, or the Commission,
may inquire as to when an investigation was concluded for purposes of section 105(a); and,
whether (or how) Long Branch may affect our evaluation of prejudice versus “reasonable time”
in the conduct of investigations pursuant to section 110(c). The fact that we have not addressed
those issues, here, has no bearing on their consideration by the Judge on remand or by the
Commission in future cases.
9

Chairman Rajkovich and Commissioner Althen note, separately, the undoubtedly
unusual aspect of these cases with the following observations. On October 27, 2015, notification
was given to the miners of the intention to propose penalties against them. The violation under
investigation was for failing to notify MSHA within 15 minutes of the occurrence of an accident.
This would not appear to be a complex matter for investigation; yet the investigation was not
reported as completed until more than two years later, on April 4, 2018. In proposing the
settlement in the operator’s case, the Secretary proffered that the resolution would “conserve
scarce resources” such as “inspectors spending time preparing for and appearing at trial.” E-mail
from Office of Solicitor attorneys to Judge’s clerk (July 27, 2016). In the Preliminary Statements
in these cases, however, the Secretary identified as potential witnesses the two inspectors who
had issued the citations and orders against Mill Branch in the operator’s case. Further, there is no
evidence that the Judge in the proceeding against the operator was informed that Scott and
Thomas were the subjects of an investigation.

42 FMSHRC Page 488

where the miners will have the opportunity to provide argument and evidence that they have
been denied due process.
We do not find a statute bars the filing in this case, and in the absence of such a finding,
the length of time, standing alone, does not bar the assessments. To establish a due process
violation, the miners would have to submit on remand evidence of actual prejudice, not just
allegations of potential or inherent prejudice.10 See Long Branch, 34 FMSHRC at 1991-93; see
also Twentymile, 411 F.3d at 262; Valley Camp Coal Co., 1 FMSHRC 791, 792 (July 1979)
(reversing Judge’s decision dismissing penalty contest for failure to timely answer penalty
petition because there was no showing that the Secretary had been prejudiced by the delay). The
Secretary would then have the opportunity to submit rebuttal evidence to the assigned Judge.

10

To date, the miners’ prejudice arguments have been made solely through argument of
counsel, with no supporting evidence, such as affidavits.

42 FMSHRC Page 489

III.
Conclusion
For the foregoing reasons we vacate the Judge’s order dismissing the proceedings and
remand these cases to the Chief Administrative Law Judge for reassignment.

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

/s/ Michael G. Young
Michael G. Young, Commissioner

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

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

42 FMSHRC Page 490

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

August 17, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 2018-0188-R
v.
M-CLASS MINING, LLC
BEFORE: Rajkovich, Chairman; Jordan, Young, Althen, and Traynor, Commissioners
DECISION
BY: Rajkovich, Chairman; Young, and Althen, Commissioners
This proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2018) (“Mine Act”). At issue is Order No. 9104295, issued to M-Class Mining,
LLC (“M-Class”) on February 24, 2018 by the Department of Labor’s Mine Safety and Health
Administration (“MSHA”). MSHA issued the order under section 103(k) of the Mine Act, 30
U.S.C. § 813(k),1 after receiving a verbal report from the local police department that a doctor
had called reporting that a miner had suffered carbon monoxide poisoning in the mine.
The operator contested the validity of the order after it was terminated, but not vacated,
by MSHA. The Secretary argued that the order was valid. The Secretary further argued that
because MSHA terminated the order prior to the hearing on the contest, the issue of the validity
of the order was moot.
The Judge first determined that the issue was not moot. The Judge then concluded that
an “accident” had occurred and affirmed the validity of the section 103(k) order. 41 FMSHRC 1,
11 (Jan. 2019) (ALJ). The operator challenges the Judge’s decision that an “accident” had
occurred.
Upon review, we affirm the finding that this case is not moot. We further determine that
the Judge erred in finding that an accident had occurred, and therefore, we vacate the order.
1

30 U.S.C. § 813(k) states that:
In the event of any accident occurring in a coal or other mine, an
authorized representative of the Secretary, when present, may issue
such orders as he deems appropriate to insure the safety of any
person in the coal or other mine, and the operator of such mine
shall obtain the approval of such representative, in consultation
with appropriate State representatives, when feasible, of any plan
to recover any person in such mine or to recover the coal or other
mine or return affected areas of such mine to normal.

42 FMSHRC Page 491

I.
Background
A. Factual Background
On February 24, 2018, miner Mitchell Mullins began his shift at the M-Class #1
underground coal mine in Macedonia, Illinois. Mullins was part of a crew of 14 miners tasked
with closing a gap in the mine roof, the result of a roof fall at the Headgate # 6 section of the MC
portal of the mine. The miners erected a steel archway to support the roof before using a diesel
air compressor to pump foam into the gap in the roof. Gas detectors were mounted in the area,
and eight to ten of the miners, including Mullins, carried hand-held gas “spotters” to track the
levels of carbon monoxide in the mine.1
Mullins arrived underground at 8:00 a.m. Between 9:00 a.m. and 9:30 a.m., he began to
suffer from dizziness and a light headache. Later, between 10:00 a.m. and 11:00 a.m., the
operator started using the compressor, which was located in proximity to Mullins. Between
11:15 a.m. and 11:30 a.m., Mullins started experiencing chest pains and difficulty breathing. At
approximately 3:00 p.m., Mine Superintendent Demitrios Macropoulos transported Mullins from
the section. Macropoulos testified that, on his way out of the mine, Mullins “said something
about how the flu had been going around his home, and he had it the previous week, and it's
probably not all the way out of his system.” Tr. 227-28. Mullins also stated he was feeling
better while enroute out of the mine.2 Nevertheless, Mullins was transported to the emergency
room at a nearby hospital.
At approximately 6:50 p.m., Dr. Dean Bosley, a physician at the hospital, called the local
police, reported that Mullins had suffered carbon monoxide poisoning while working at the
mine, and further recommended that the mine be shut down. The police called an MSHA hotline to report Dr. Bosley’s diagnosis and recommendation. The MSHA hot-line employees used
this information to create an escalation report that was then sent to the local MSHA field office.
After receiving the escalation report, the MSHA field office supervisor, Bob Bretzman,
called Parker Phipps, a senior management official at the mine. Phipps informed Bretzman that
he had worked with Mullins in the same area that day, and had not detected any elevated levels
of carbon monoxide with his gas spotter. Bretzman did not issue an order to evacuate the mine,
but informed Phipps that he was sending an inspector out to investigate. Phipps then sent a
miner to inspect the area at issue. The miner did not detect any elevated carbon monoxide levels.

1

The handheld gas spotters can record data of carbon monoxide levels throughout a shift
or merely the highest (“peak”) levels of carbon monoxide detected during a shift. Combined
with a tracking system used to locate miners, it is possible to identify where a miner was located
during each recording of carbon monoxide levels. Tr. 43, 46-47.
2

Mullins provided that observation in an interview directly to MSHA field office
supervisor Bob Bretzman.

42 FMSHRC Page 492

Inspector Brandon Naas was dispatched to the mine. He reviewed the escalation report at
the MSHA field office before leaving for the mine. Naas arrived at the mine at 10:43 p.m. Upon
his arrival, relying upon the escalation report generated by the doctor’s call, Naas immediately
issued Order No. 9104295 under section 103(k) of the Mine Act at 10:55 p.m. to suspend
operations in the area at issue. While Naas was still on the surface, he reviewed a report from
the mounted gas detectors (the monitors) and checked the data from a hand-held gas spotter. In
neither case was there any indication of elevated carbon monoxide levels in any area where
Mullins had been working. At about midnight, Naas went underground to Headgate # 6 to
investigate the area at issue. While he was underground, he used a gas spotter and did not detect
any elevated levels of carbon monoxide. He was unable to locate, and therefore check, Mullins’
own hand-held gas spotter.
By 1:25 a.m. Naas had completed his investigation. Having not found any high levels of
carbon monoxide, he modified his order to release the area for resumption of normal mining
operations. Naas then started the air compressor to determine if he could detect an exhaust of
carbon monoxide. He did not detect any elevated levels of carbon monoxide from the
compressor. Sec’y Ex. 2 at 6-7.3
The next day, at 8:15 a.m., Naas again modified the order. The second modification
removed the compressor from service pending further investigation. MSHA stated that this
modification was made because of a need for further investigation into whether the compressor
was a source of elevated carbon monoxide. Sec’y Ex. 1 at 1-3.
Between February 26 and February 28, Naas interviewed Mullins and other miners who
had worked with Mullins on February 24. Again, he did not find any evidence that any miners
had detected elevated levels of carbon monoxide on the day in question. Naas also did not find
any evidence that any other miner who had worked in the area that day had suffered chest pains
or breathing difficulties.
Despite the lack of findings, MSHA subsequently required the operator to submit an
action plan to prevent exposure to elevated levels of carbon monoxide. On March 1, 2018, the
operator submitted its proposed action plan. MSHA rejected this plan on March 7, 2018. The
operator responded by proposing another action plan on March 8, 2018. However, the parties
were again unable to reach agreement.
Thereafter, on March 15, 2018 the operator filed this action. Over one month later, on
April 4, 2018, although the parties had not reached an agreement on a proposed action plan,
MSHA terminated the order and returned the compressor to the operator. MSHA never
identified elevated levels of carbon monoxide in the area nor any source that would cause
elevated levels of carbon monoxide. MSHA never issued a citation related to the order. 41
FMSHRC at 5.

3

State inspectors took bottle samples of the air to check for carbon monoxide. The
results of those bottle samples were negative, showing 5 ppm, an amount significantly below the
regulatory threshold. Tr. 66.

42 FMSHRC Page 493

B. Procedural Background
M-Class not only contested the order on March 15, it also filed a motion for an expedited
hearing on the order. On March 30, the presiding Judge denied M-Class’s motion for an
expedited hearing. The operator continued to challenge this order, contending that no accident
had occurred.
On July 18, the Judge concluded that the case was not moot. 40 FMSHRC 1288 (July
2018) (ALJ). On September 20, the Secretary filed a petition for interlocutory review of the
Judge’s order asking the Commissioners to find that the matter was moot. Due to the absence of
a quorum, the Commission was unable to consider this petition.4
On October 3-4, the Judge held a hearing in this matter. Neither Mullins, the allegedly
affected miner, nor Dr. Bosley, the physician who initially phoned the local police
recommending that the mine be shut down, testified during the hearing. On January 14, 2019,
the Judge determined that an “accident” had occurred on February 24, 2018 and affirmed the
order. 41 FMSHRC at 10-11. Subsequently, the operator filed a timely petition for review,
which the Commission granted on February 25, 2019.
II.
Judge’s Decision
The Judge’s order of July 18, 2018, held that the section 103(k) order was not moot,
despite having been terminated, because the order posed continuing consequences for the
operator. Specifically, the Judge found that the order could impact the operator’s reputation.
Alternatively, the Judge found that the order fell within the capable-of-repetition-yet-evadingreview exception to mootness. 40 FMSHRC at 1291-92.
The Judge went on to decide the case on the merits. In the decision, the Judge held an
“accident” had occurred and affirmed the section 103(k) order. 41 FMSHRC at 11.
The Judge reasoned that the event involving Mullins was an “accident” because it was a
sudden event which required quick action to ensure safe mining conditions, making it similar in
nature to a mine inundation – an event which constitutes an “accident” under section 3(k) of the
Mine Act. Aluminum Co. of America (“Alcoa”), 15 FMSHRC 1821, 1824 (Sept. 1993). In
relevant part, the Judge determined that “Mullins’ diagnosis and the rapid response of all
involved parties demonstrate that his injury was a sudden event . . . [The] evacuation and
hospitalization of a miner positively diagnosed with carbon monoxide poisoning constitutes an
injury that requires quick action to ensure the safety of other miners.” 41 FMSHRC at 7-8.

4

The Commission may grant interlocutory review only by “a majority vote of the full
Commission or a majority vote of a duly constituted panel of the Commission.” 29 C.F.R. §
2700.76(a)(2). Therefore, in the absence of a quorum the Commission may not undertake
interlocutory review.

42 FMSHRC Page 494

Alternatively, the Judge found that Mullins’ hospitalization was an injury which constituted an
independent basis for an accident. Id. at 8.
The Judge implicitly acknowledged that Mullins’ harm might not have been caused by
mining conditions. He stated that “M-Class presented credible evidence demonstrating that no
elevated carbon monoxide levels were detected . . . and that Mullins’ original diagnosis may not
have risen to the level of carbon monoxide poisoning.” Id. at 9. The Judge’s focus, however,
was on MSHA’s issuance of the order “in response to the information it possessed at the time,”
finding that the agency reasonably relied on the escalation report, which “rationally connect[ed]
Mullins’ injury to a potential . . . elevation of carbon monoxide at the mine.” Id. at 8.
Consequently, the Judge’s determination of an “accident” was based upon what MSHA thought
at the time of the issuance of the order rather than whether an “accident” had actually occurred.
In addition, the Judge upheld the second modification to the order, under which the
inspector removed the air compressor from service. The Judge held that the second modification
was limited in scope, i.e., it only applied to the air compressor, and the inspector reasonably
suspected that the compressor was a source of elevated carbon monoxide because the compressor
was the only equipment to which the miner was not normally exposed. Id. at 10-11.
III.
Disposition
In its Petition for Discretionary Review, the operator lists three assignments of error.
First, the operator claims that the Judge erred in finding that an “accident” had occurred under
the Mine Act because MSHA was unable to show that “there was carbon monoxide present in
the underground mine which injured or sickened a miner.” PDR at 13. Second, the operator
claims that the Judge erred in finding that the section 103(k) order, which was modified twice,
was reasonably tailored in scope. Third, the operator claims that the Judge, by failing to grant
the operator’s request for an expedited hearing, erroneously denied the operator an appropriate
remedy for MSHA’s removal of a valuable compressor from service for an extended period.
The Secretary argues on appeal that the section 103(k) order is moot because it has been
terminated and therefore does not pose any legal consequences under the Mine Act. In addition,
the Secretary claims that the order does not fall within the capable-of-repetition-yet-evadingreview exception to mootness.5

5

The Secretary also claims that the Judge erred in using the operator’s reputational
concerns to find that this matter was not moot. However, as set forth below, the operator has a
legally cognizable interest, separate from its reputational concerns, in having the order vacated.

42 FMSHRC Page 495

A. The Section 103(k) Order is Not Moot
In North American Drillers, we addressed the mootness doctrine as applied to the
Commission:
[W]hile the article III constitutional requirement of “case or
controversy” does not literally apply to federal administrative
agencies like the Commission, “an agency receives guidance from
the policies that underlie the ‘case or controversy’ requirement of
article III …. An agency acts within its discretion in refusing to
hear a case that would be considered moot if tested under the
article III ‘case or controversy’ requirement” . . . A case is moot
when the issues presented no longer exist or the parties no longer
have a legally cognizable interest in the outcome.
34 FMSHRC 352, 358 (Feb. 2012). In that case, we determined that the Secretary’s vacation of
the citation combined with the Judge’s dismissal of the civil penalty with prejudice meant that
the parties no longer had a legally cognizable interest in the outcome. In contrast, here, Order
No. 9104295 has been terminated, but not vacated.
In Wyoming Fuel Co., 14 FMSHRC 1282, 1288-89 (Aug. 1992), we determined that
termination of a citation/order “is a common administrative function of the Secretary . . . meant
only to convey that a violative condition has been abated.” Notably, we determined that a
terminated order continues to exist for other legal purposes besides abatement, which in turn
permits the terminated enforcement action to be contested in subsequent civil proceedings. In
contrast, vacation of an order means that the order no longer exists for legal purposes. In this
case, the order outlives its termination and continues to indicate on the record that an accident
occurred at the mine.
Therefore, we must examine whether the terminated order at issue can pose any legal
consequences for the operator. If so, the operator retains a legally cognizable interest in having
the order vacated.
We note that the subject section 103(k) order does not currently allege the violation of
any health or safety standard. Nevertheless, as noted above, it remains an order finding the
occurrence of an “accident.” The issuance of any section 103(k) order necessarily initiates an
investigation at a mine, which is what occurred in this case. Accident investigations have
multiple purposes, including the finding of facts to support allegations of violations, both civil
and criminal.
The mere listing of an “accident,” in the form of a section 103(k) order, in the compliance
history of a mine, is a clear implication to the public that something occurred at that mine that
affected the health and safety of miners. That has a diminishing effect on the operator’s
compliance history. Thus, there is legislative legal precedent and reputation is far from a hollow
concern.

42 FMSHRC Page 496

Moreover, section 103(k) orders can be modified, as was the case here. Such
modifications, in general, could allege the violation of a health or safety standard. Our case-law
permits the Secretary to make such a modification, even though the order at issue has been
terminated, and despite the fact that the order does not currently allege a violation of any
standard. First, in Wyoming Fuel, 14 FMSHRC at 1288-89, we found that termination of a
citation only meant that the violative condition had been abated and did not preclude the citation
from subsequently being modified. We have recognized that this principle – that terminated
citations can be modified – also applies to withdrawal orders such as those issued under section
103(k) of the Mine Act. See Ten-A-Coal Co., 14 FMSHRC 1296, 1298 (Aug. 1992). Second,
we have determined that a withdrawal order which did not allege a violation of a standard could
be modified to allege such a violation. Westmoreland Coal Co., 8 FMSHRC 1317, 1328 (Sept.
1986).6
Our dissenting colleagues accept that an inspector must issue a citation if a violation is
discovered. That requirement reinforces the valid premise that section 103(k) orders can lead to
the issuance of one or more citations for violations discovered during the course of the
investigation. Therefore, if an order is not vacated, the Secretary retains the ability to modify the
order to allege a violation of a safety or health standard, which could in turn affect the operator’s
repeat violation history. In contrast, if the order is vacated, it may not serve as a basis for a
citation that would appear in the operator’s repeat violation history or affect future penalties
assessed against the operator.
Thus, the operator retains a legally cognizable interest in having the terminated order
vacated. Accordingly, we find that Order No. 9104295 is not moot
We further find that the order is also within the capable-of-repetition-but-evadingreview exception to mootness. In Performance Coal Co., 642 F.3d 234, 237-38 (D.C. Cir.
2011), the Court explained that this exception applies when there is a reasonable expectation that
the party seeking to avoid mootness will be subjected to the same action again and the duration
of the challenged action is too short for the action to be litigated fully before the action expires.
The Court explained that when applying this exception, courts should focus on whether the
alleged legal wrong is likely to recur, not whether the precise historical facts are likely to recur.
Id.
In this case, the Secretary does not dispute that the duration of the order was too short for
the order to be litigated fully, i.e. the Secretary does not contest that the order would evade
review. Instead, the Secretary argues that the operator has not shown that it is likely to contest
terminated section 103(k) orders and their modifications in the future.
However, under Performance, 642 F.3d at 237-38, the relevant issue is whether the
general legal wrong, not the precise historical facts, is likely to recur. Furthermore, it is

6

Despite these precedents our dissenting colleagues apparently disregard stare decisis on
this point, querying “[w]hether MSHA would have the legal authority to do so is unclear.” Slip
op. at 21.

42 FMSHRC Page 497

sufficient for a party, when claiming the recurrence of a general legal wrong, to assert that it will
challenge the same action in the future. Id.
Here, the general legal wrong concerns the harmful impact of section 103(k) orders on
the operator’s ability to use equipment at a mine. This order, as modified on February 26, 2018,
prevented the operator from using a diesel air compressor from February 26 until April 4. In
other words, the order, as modified, removed a compressor from service for the entire month of
March. MSHA does not dispute that in the future, it might issue similar orders under section
103(k). M-Class’s contest of the terminated order suggests that the operator will challenge such
agency actions in the future, even if they are later terminated, because they restrict the operator’s
ability to use equipment.
More importantly in this case, the operator was required to comply with the order
mandating the lengthy loss of use of equipment as though there had been an accident until it
raised a legal challenge to the Secretary’s actions. Only at that point did MSHA capitulate and
terminate the order. Commissioner Jordan would hold this case moot, and Commissioner
Traynor would require that we uphold the continued fiction that an “accident” had occurred (in
the absence of any evidence of such), despite the fact that section 103(k) operates prospectively
as a limit on the operator’s activities. Here, despite the fact that the agency had apparently
conducted all of the investigation it intended to undertake and had found no evidence of any
“accident,” the operator required MSHA approval to regain control of its property and return,
formally, to “normal” mining.
In addition to the particular and ongoing harm suffered by the operator, which has been
forced to undertake significant trouble and expense to vindicate its constitutional right to
maintain control over its property and resume its lawful activities (absent an important
government need to prevent it from doing so), there is a general harm. If the agency is not
countered here, it may be presumed that it will operate similarly in the future, because there is no
means of holding the agency accountable, absent threatening or commencing litigation – at
which point the agency will again withdraw and await the next opportunity to act with temporal
impunity.
This is the classic paradigm for the exception, in which a government agency terminates
an enforcement action when challenged, but retains the ability to file subsequent actions because
its enforcement action has not been adjudicated as improper. See S. Pac. Terminal Co. v. ICC,
219 U.S. 498, 515 (1911) (establishing the exception to mootness where a parties’ rights,
“capable of repetition yet evading review,” could be determined by the agency’s short-term
orders without a chance of redress); Spencer v. Kemna, 523 U.S. 1, 17 (1998) (the capable-ofrepetition exception to mootness applies where “(1) the challenged action [is] in its duration too
short to be fully litigated prior to cessation or expiration, and (2) there [is] a reasonable
expectation that the same complaining party [will] be subject to the same action again”
(emphasis added; internal quotation marks omitted)); U.S. v. Concentrated Phosphate Export
Assn., Inc., 393 U.S. 199, 203 (1968) (party whose actions threaten to moot a case must make
“absolutely clear that the allegedly wrongful behavior could not reasonably be expected to
recur”); U.S. v. W. T. Grant Co., 345 U.S. 629, 632-633 (1953) (voluntary cessation of illegal

42 FMSHRC Page 498

activity will not render case moot unless there is “no reasonable expectation that the wrong will
be repeated” (internal quotation marks omitted)).
Therefore, we find there was a continuing existence of an official and potentially legally
harmful order finding that an “accident” had occurred at the operator’s mine. The general legal
wrong posed by Order No. 9104295 is likely to recur, i.e. is capable of repetition. Thus, the
exception to mootness applies to this case.
B. The Judge’s Accident Determination Is Vacated.7
Section 103(k) of the Mine Act provides that “[i]n the event of any accident occurring in
a . . . mine, [an MSHA inspector], when present, may issue such orders as he deems appropriate
to insure the safety of any person in the . . . mine.” 30 U.S.C. § 813(k). Therefore, an accident is
a prerequisite for a section 103(k) order, as stated in Aluminum Co. of America (“Alcoa”), 15
FMSHRC 1821, 1824 (Sept. 1993). Section 3(k) of the Mine Act defines an “accident” as
including “a mine explosion, mine ignition, mine fire, or mine inundation, or injury to, or death
of, any person.” 30 U.S.C. § 802(k). We have recognized that the definition of “accident” in
section 3(k) applies to the entire Mine Act. Revelation Energy, LLC, 35 FMSHRC 3333, 3339
(Nov. 2013); Big Ridge, Inc., 37 FMSHRC 1860, 1866 (Sept. 2015).
The federal courts have followed our determination that the term “accident” as used in
section 103(k) encompasses events that are similar in nature to or that have a similar potential to
cause injury as a mine ignition, mine inundation, mine fire or mine explosion. See Pattison Sand
Co., 688 F.3d 507, 513 (8th Cir. 2012) (citing Alcoa, 15 FMSHRC at 1825-26). In Alcoa, the
Commission stated, “Mine explosions, ignitions, fires and inundations typically are sudden
events that pose an immediate hazard to miners and require emergency action.” 15 FMSHRC at
1826. Therefore, in Alcoa, the Commission found the predicate for an accident must be an
incident, occurrence, or condition in a mine.8
7

Commissioner Jordan confined her dissent to the mootness issue. Therefore, our
references to the dissent in the following text refer only to Commissioner Traynor.
8

Curiously, our dissenting colleague finds fault with this logical conclusion drawn from
Alcoa. In Alcoa, the Commission acknowledged that “a mercury release that involves injury to,
or causes the death of any person,” would qualify as an accident, by the express terms of section
3(k) of the Act. 15 FMSHRC at 1824. We also agreed that “an event . . . ‘similar in nature or
present[ing] a similar potential for injury or death as a mine explosion, ignition, fire or
inundation’” might qualify as an “accident.” Id. at 1825-26. However, we noted that this
determination must be made on a case-by-case basis. Thus, we expressly rejected the limitless
scope he would have us impose through this case, in favor of an evidentiary determination
grounded on a question of similarity to “events” – “mine explosions, ignitions, fires, and
inundations” – that must be recognized as incidents, occurrences or conditions in the mine.
Alcoa is, in fact, the obverse of the case before us. There, the Secretary presented evidence of a
contaminant, but no evidence of any illness resulting from exposure. Here, of course, there is
(continued…)

42 FMSHRC Page 499

Our dissenting colleague urges upholding the order on the basis of an expansive
construction of the term “accident.” Slip op. at 29. But such a construction cannot exceed the
boundaries of the Mine Act. MSHA and the Commission have limited jurisdiction over the areas
delegated by Congress to our respective stewardship. As such, the Supreme Court’s approval of
broad, sweeping powers over the activities of persons engaged in mining activities, Donovan v.
Dewey, 452 U.S. 594, 602-06 (1981), must be limited to the activities within the scope of that
authority. Thus, our colleague’s suggestion that any “injury” – including any illness from any
cause, mining-related or not – may be subject to MSHA’s plenary control under Section 103(k)
is erroneous. See Sec’y of Labor v. National Cement Co. of California, 573 F.3d 788, 795 (D.C.
Cir. 2009) (Mine Act cannot be interpreted in a way that extends its coverage to matters which
are not within operator's control or supervision).
This erroneous interpretation not only distorts the meaning of the term “accident,” it
departs from the stated purpose of Section 103(k), which is “to insure the safety of any person in
the coal or other mine.” It thus entirely misses the point of designating any incident as an
“accident.” A fundamental purpose of examining an “accident” is to protect other miners in the
mine from whatever harmed the injured. See 30 U.S.C. § 813(k) (Secretary’s representative
“may issue such orders as he deems appropriate to insure [sic] the safety of any person in a coal
or other mine, and the operator of such mine shall obtain the approval of such representative” of
any plan to recover persons or coal or return affected areas of the mine to normal). It is
prospective, in that a Section 103(k) investigation of an “accident” is aimed at preventing the
same consequence to other miners post-incident
Such a limitless interpretation of the term “accident” would encompass incidents totally
unrelated to mining—for example, complications from diabetes or a bout of influenza. Indeed,
our dissenting colleague concludes that, given Mullins’ symptoms here while at the mine,
“[s]ubstantial evidence supports a finding that Mullins suffered an injury.” Slip op. at 29. Thus,
our colleague would broaden the term “accident” to encompass illness while at work—perhaps
even including an upset stomach or an allergic reaction. The clear meaning of Section 103(k)
binds the Commission as clear authority in this and future enforcement proceedings.
In analyzing the reactions to Mullins’ illness underground, the Judge notes that “Mullins’
diagnosis and the rapid response of all involved parties demonstrate that his injury was a sudden
event similar in nature to those requiring quick action under § 3(k).” 41 FMSHRC at 7. The
“sudden event” posited by the Judge in this case was Mullins’ feeling ill, not an inundation of
carbon monoxide—which was never found. The only rapid event in this incident was the
transportation of Mullins off the section when he complained of chest pains. Hopefully the
illness of any miner, for any reason, would be met with a rapid response. There is no evidence of
8

(…continued)

evidence of an illness, but none whatsoever of any contaminant, or any other incident,
occurrence, or condition similar to an explosion, fire, ignition, or inundation. In both cases, the
causal nexus between a predicate “event” and a resulting “injury” fails on evidentiary grounds.
Our decision today is therefore entirely consistent with Alcoa and the terms of the Act as we
have interpreted them in our precedents.

42 FMSHRC Page 500

any mining event adversely affecting the health or safety of miners on the section. No
immediate action was or could be taken on the section to remedy any condition affecting miners
because no hazard was found. No citations were ever issued for lack of an appropriate response
to any conditions in the mine. Moreover, the section 103(k) order was not issued until nearly
eight hours after Mullins got sick on the section. Nothing in the statute equates response time of
reactions to a miner’s illness as being the determining factor of an “accident.”
In Pattison, 688 F.3d at 513, the Eighth Circuit recognized that the accident
determination should focus on the presence of dangerous mining conditions. In other words, the
predicate for an accident as defined by the Mine Act is an event in or condition of the mine.
Under Pattison, Id. at 512-14, the Judge’s determination that an incident in a mine constituted an
“accident” must be supported by substantial evidence.9 The Eighth Circuit found that neither the
Mine Act nor our case-law had specified a standard of review for orders issued by MSHA under
section 103(k) of the Mine Act. Therefore, the Eighth Circuit held that the Judge should apply
the arbitrary and capricious test for any non-factual agency determinations related to a section
103(k) order, 688 F.3d at 513, but noted that the substantial evidence test applied to factual
determinations, a point overlooked by our dissenting colleague. Id. at 514. Similarly, in Alcoa,
15 FMSHRC at 1824, we suggested that the accident determination was “evidentiary in nature”
(in this context, we reviewed whether the evidence established that miners were overexposed to
mercury vapor or had come into contact with liquid mercury). Id.
Our colleague misses and misstates the issue before the Commission. The issue,
therefore, is not whether the issuance of the 103(k) order was an abuse of discretion. When a
Judge does not find substantial evidence to support a finding that an accident has occurred, the
Judge must vacate any such order. In our colleague’s line of reasoning, any time a miner gets
sick in a mine it would prove an “accident” has occurred regardless of the nature or cause of the
sickness. That, of course, is wholly at odds with the plain meaning of accident and the statutory
definition.10
When reviewing a Judge’s factual determination, we are bound by the terms of the Mine
Act to apply the substantial evidence test. 30 U.S.C. § 823(d)(2)(A)(ii)(I). We have defined
substantial evidence as “such relevant evidence as a reasonable mind might accept as adequate to
support [the Judge’s] conclusion.” Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163
(Nov. 1989)(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

9

In Friends of Richards-Gebaur Airport, 251 F.3d 1178, 1184-85 (8th Cir. 2001), the
Eighth Circuit distinguished an agency’s non-factual determination, which the court reviewed
under the arbitrary and capricious standard, from an agency’s factual finding, which the court
reviewed under the substantial evidence test. Both the Mine Act and the statute at issue in
Friends of RGA specify that the substantial evidence standard shall be used to evaluate findings
of fact.
10

Our dissenting colleague states that, because in his estimation our interpretation of
section 103(k) is plainly wrong, it is not binding precedent and need not be followed. Slip op. at
29. A unanimous decision is no prerequisite for binding precedent.

42 FMSHRC Page 501

Accordingly, the proper test for the existence of an “accident,” here, is the substantial evidence
test.
In his decision, the Judge recognized that “M-Class presented credible evidence
demonstrating that no elevated carbon monoxide levels were detected.” 41 FMSHRC at 9.
Rather than ruling on this basis, the Judge essentially found there was an accident because the
inspector had reason to believe there was an accident when he arrived at the mine.11 Thus, the
Judge found that the inspector’s belief, however unfounded, that there was an accident could
validate a section 103(k) order even if the evidence showed no accident actually occurred.
Therefore, the case raises two questions. First, did the event involving Mullins constitute
an accident? If so, that would be the end of the matter. If not, the second question arises - is a
section 103(k) order valid when an inspector issues the order with a good faith belief that an
accident occurred when, in actuality, an accident did not occur?
1. The Event Involving Mullins was Not an Accident within the Meaning of
the Mine Act.
In his determination of an “accident,” the Judge found the event could be classified as an
“inundation” of carbon monoxide or as an “injury.”12 Regardless of whether such an event were
called an injury, illness, or sickness, the gravamen of an “accident” is that it must arise from a
condition, practice or occurrence in the mine.
The one item of evidence—the escalation report (Sec’y Ex. 7)—purportedly supporting
an allegation of carbon monoxide poisoning is seriously problematic. That report contains
hearsay of a purported telephone call from Dr. Bosley reporting that Mullins suffered carbon
monoxide poisoning. A police dispatcher took the call from Dr. Bosley. A police dispatcher
named “Amos Abbot,” without it being clear whether Mr. Abbot was the same dispatcher who
spoke with the doctor, called an unidentified person on the MSHA hotline who, in turn, called
the district office. None of this evidence purports to be quoting Dr. Bosley directly. Although
11

The Judge determined that an accident had occurred because when the inspector issued
the order, he relied on the escalation report, which “rationally connect[ed] Mullins’ injury to a
potential . . . elevation of carbon monoxide at the mine.” 41 FMSHRC at 8-10. Our colleague
would hold that Mullins felt sick and that this is sufficient under the Act. Of course, that entirely
misses the point of section 103(k) and the definition of an accident. A miner who enters the
mine with a broken bone most definitely has suffered an “injury” at some point in the miner’s
life. However, it would be nonsense to say that when a miner enters the mine with a previously
broken bone such entry constitutes an accident within the meaning of section 103(k) justifying
closure of a section of the mine.
12

While section 3(k) of the Mine Act states an “accident includes a mine explosion,
mine ignition, mine fire, or mine inundation, or injury to, or death of, any person,” we need not
discuss whether carbon monoxide poisoning would constitute an “injury” or would fit within
section 3(k) by virtue of Congress’ use of the word “includes” in defining an accident because
there is no evidence of excess carbon monoxide in the mine at any relevant time.

42 FMSHRC Page 502

the gist of what the doctor said may be accurate, there is no certainty that the message passed
through four calls accurately reflects Dr. Bosley’s statement.
In fact, there is no verification of Dr. Bosley’s statement whatsoever. Dr. Bosley was
never interviewed by the inspector. The Secretary failed to call Dr. Bosley as a witness.
Therefore, the only evidence of a carbon monoxide inundation is quadruple hearsay from a
witness who did not testify at the trial and whom MSHA did not interview. Further, as noted,
Mullins himself did not testify.
All the other evidence rebuts any indication that Mullins was poisoned by an inundation
of carbon monoxide while working in the mine.
•

•
•
•

•
•

•

•
•

There is no evidence that any other miner who worked with Mullins that day was
exposed to any elevated level of carbon monoxide. For example, Parker Phipps used
a gas spotter to measure levels of carbon monoxide while he worked with Mullins that
day. Phipps did not detect any elevated levels of carbon monoxide, as he informed
Bob Bretzman, a MSHA field office supervisor, during a phone call later that
evening.
There is no evidence that any other miner who worked with Mullins on February 24
suffered chest pains, breathing difficulties, or any other symptoms consistent with
exposure to excessive carbon monoxide.
After speaking with Bretzman on that February 24 evening call, Phipps sent a miner
to inspect the area where Mullins had been working. The miner reported back to
Phipps that he did not detect any elevated levels of carbon monoxide in the area.
On the night of the event, shortly after arriving at the mine, Inspector Naas reviewed
the records of the monitoring system and of a gas spotter. The inspector reviewed
these records before proceeding underground. He did not find any evidence of
elevated carbon monoxide for the time and area at issue.
During his underground inspection that immediately followed, the inspector used a
gas spotter to measure the levels of carbon monoxide in the area at issue. He did not
detect any elevated levels of carbon monoxide.
In the early morning hours of February 25, Inspector Naas started the air compressor,
the only machine that was even a possible source of carbon monoxide, to check it
while it was running. There was no evidence of carbon monoxide emissions during
the inspector’s test, or any other evidence indicating that the compressor may have
exposed miners to elevated levels of carbon monoxide.
Mullins carried a gas spotter to measure the levels of carbon monoxide during his
work on February 24. Although his gas spotter was not found following the accident,
our dissenting colleague fails to observe that Mullins did inform the inspector that he
did not detect any elevated levels of carbon monoxide with his spotter.
The state enforcement agency took bottle samples of the air in the mine area where
Mullins worked. The results were well within permissible limits for carbon
monoxide.
No witness identified any other possible source of carbon monoxide.

42 FMSHRC Page 503

•

During the hearing, Dr. Michael Mullins,13 an expert toxicologist, testified as to his
review of Mitchell Mullins’ medical records while he was hospitalized from February
24 through February 27, particularly regarding the levels of carbon monoxide in the
miner’s blood following his evacuation from the mine.
o Mitchell Mullins’ initial carboxyhemoglobin concentration, measured at
around 4:24 p.m. on February 24, was 4.8%. The next morning, at around
6:18 a.m. on February 25, it had decreased to 3.4%. However, the following
morning, at around 5:45 a.m. on February 26, it had increased to 4.2%.
o Dr. Michael Mullins’ testimony was that symptoms of carbon monoxide
poisoning occur when the carboxyhemoglobin concentration is above 15%.
o Mitchell Mullins’ initial carboxyhemoglobin measurement at the hospital was
only 4.8% – a level too low to cause symptoms.
o Dr. Michael Mullins also testified that the increased carboxyhemoglobin
concentration during the hospital stay suggested that the level of carbon
monoxide in Mitchell Mullins’ blood was caused by a condition unrelated to
the mine, such as a smoking habit.

Dr. Mullins’ testimony and interpretation of the carboxyhemoglobin data was not
rebutted by any other witness. Consequently, not only was there no corroboration whatsoever of
the hearsay statement attributed to Dr. Bosley, upon which the Secretary premises an “accident”
occurred, but indeed, there is mountainous unrebutted evidence to the contrary. The Judge’s
finding that there was an inundation of carbon monoxide sickening Mullins is not merely
unsupported by substantial evidence. It is rebutted by virtually all the evidence in the case.
In light of this mountainous evidence, our dissenting colleague refrains from making a
finding that substantial evidence supports a view that Mullins suffered carbon monoxide
poisoning in the mine. That would be clearly erroneous, given the established facts. Instead, a
different equally erroneous suggestion is offered—that, whatever the cause, Mullins felt sick,
and so an “accident” has occurred. It is our duty to follow the law—it is not our job to expand
the law beyond the intent of Congress and common sense.
Moreover, our colleague’s dissent contains a number of errors, and statements counter to
his position. First, our colleague states that Mullins was working near a compressor and that
“[n]o other potential cause of the injuries was identified during the investigation” Slip op. at 28
(emphasis added). We agree. Testing by MSHA and the State agency demonstrated that the
compressor was not emitting any consequential, much less sickening, levels of carbon monoxide.
Consequently, those tests eliminate the compressor as a potential source of injury. It follows,
therefore, that there was no potential cause of carbon monoxide poisoning to Mullins in the
mine.
Our colleague states that “M-Class failed to produce Mullins’ gas spotter to
investigators.” Id. Use of the word “failed” leaves an implication that M-Class may have been
less than forthcoming. There is no support for such an implication in the record and the
13

Dr. Michael Mullins is unrelated to Mitchell Mullins, the miner at issue.

42 FMSHRC Page 504

Administrative Law Judge did not draw such implication. Again, the Judge found that “Mullins
acknowledged that his spotter did not go off while he was working.” 41 FMSHRC at 5. Nor
did any other miner’s spotter alert at any time. Id. There is no basis for drawing an adverse
inference here, because there is no close evidentiary question at issue. There is no evidence at
all, from any source, supporting excessive carbon monoxide at any relevant time. Mullins was
transported rapidly from the mine during what was perceived as a medical emergency. A
reasonable conclusion from the evidence suggests that Mullins’ spotter may have been lost in
transit, which is probably why the Judge found the absence of the spotter to be unremarkable.
In a footnote, our colleague states that our opinion may lead to an absurd finding that an
“accident” may not arise from an injury or death due to an “unknown origin.” Slip op. at 29 n.6.
Again, he mischaracterizes our holding and misses the point. The gravamen of an “accident” is
that it must arise from a condition, practice or occurrence in the mine. That is the qualification
for determination of an accident attributed to any death or injury.
2. A Valid Section 103(k) Order Requires the Occurrence of an Accident
The Judge found the inspector had a reasonable basis to believe an accident occurred
when he issued the section 103(k) order. This leads us to our second question. Is a section
103(k) order valid when an inspector issues the order with a good faith belief that an accident
occurred when, in actuality, an accident did not occur?
The Commission follows the cardinal rule of statutory interpretation and application. We
apply the statute as written, looking first to the ordinary meaning of the words and remaining
faithful to the plain words of the statute. Schindler Elevator Corp. v. United States ex rel. Kirk,
563 U.S. 401, 407 (2011); see also Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 541
U.S. 246, 253 (2004) (“Statutory construction must begin with the language employed by
Congress and the assumption that the ordinary meaning of that language accurately expresses the
legislative purpose”)(quoting Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194
(1985)); Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995)(“When terms used in a
statute are undefined, we give them their ordinary meaning”)(citing FDIC v. Meyer, 510 U.S.
471, 476 (1994)). If the words are clear, we may not make any further inquiry. Schindler
Elevator Corp., 563 U.S. at 412 (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997)).
Section 103(k) could not be clearer. It states in relevant part that,
In the event of any accident occurring in a coal or other mine, an
authorized representative of the Secretary, when present, may issue
such orders as he deems appropriate . . . .
30 U.S.C. § 813(k) (emphasis added).
The Mine Act authorizes issuances of orders under section 103(k) “in the event of an
accident . . . .” It does not say “if the inspector thinks there is an accident,” or “if there might
have been an accident.” It says plainly and without room for doubt that a section 103(k) order
may be issued in the event of an occurrence of an “accident.” Few legal principles match the
clarity of our obligation to apply the words of the Mine Act as they appear in the statute and the

42 FMSHRC Page 505

Mine Act clearly and unequivocally authorizes a section 103(k) order “in the event of an
accident.” Turning again to Pattison, the Eighth Circuit found, “Because the Act only provides
for issuance of a § 103(k) order ‘[i]n the event of an[ ] accident,’ 30 U.S.C. § 813(k), the
Secretary lacked authority to issue the order if the roof fall was not an accident.” Pattison,
688 F.3d at 513. This holding accords completely with the command that we apply the Mine Act
as written and are holding today. We find no basis to suggest that MSHA may issue a valid
order when it clearly lacked the authority to do so.
In a footnote, our colleague suggests that our opinion would “narrow the broad discretion
Congress intended to provide MSHA to investigate injuries in mines and protect the life and
safety of miners.” Slip op. at 29 n.6. That is not our holding. When an inspector arriving at a
mine has sufficient information to form a good faith belief that an accident has occurred, he may
issue an appropriate section 103(k) order. Neither the inspector nor MSHA will suffer any
adverse repercussions from an inspector’s exercise of a reasonable, good faith judgment, albeit
erroneous, in the interest of miner safety.
However, such actions do not sustain an order or a citation when the statutory
requirements for issuance of an order or citation do not exist. For example, inspectors issue
citations based upon a belief that a violation has occurred. Sometimes the inspector is wrong.
No violation has occurred. It would be nonsensical to argue that an erroneous citation must be
affirmed because the inspector reasonably thought he was right at the time even though the
evidence shows no violation occurred. There would be little purpose to providing a right to
contest the government’s action. Government edicts issued outside the bounds of statutory
authority must be vacated.14
Moreover, history tells us that there is no chilling effect to the vacation of erroneously
issued citations—inspectors continue to issue them. Likewise, there is no chilling effect from the
vacation of an erroneously issued section 103(k) order.
Thus, when an initial belief turns out to be incorrect and an accident did not occur, it
behooves MSHA to vacate the order rapidly to permit resumption of operations. When MSHA
fails to do so, the operator has a right to contest the validity of the order. Further, when the
interruption is significant, an operator should be able to rely upon the availability of an expedited
hearing to obtain a speedy adjudication of its right to continue mining.15
14

Our colleague seems to believe that a 103(k) order must be upheld in the absence of an
accident, or that substantial evidence supports a finding of an “accident” in this case. Neither
premise is valid, and our reference to citations for violations is intended simply to illustrate the
fallacy of his suggestion that a challenged government action may be sustained as “valid” in the
absence of a necessary element or substantial evidentiary support.
15

Commission rules provide for the filing of motions to expedite. 29 C.F.R. § 2700.52.
The availability of a motion for expedited hearing provides the route for expedited consideration
of orders that may cause significant damage to the operator during their duration. If MSHA
insists upon claiming an accident occurred when, as here, substantial evidence does not support
such an event, the Commission provides the only source of redress for the operator.

42 FMSHRC Page 506

When it turns out the inspector was wrong and an accident did not occur, we cannot
affirm an invalid section 103(k) order because the inspector’s belief was a good faith mistake.
Contrary to Commissioner Jordan’s comment, Slip op. at 21, evidentiary questions, such as those
raised and unresolved in this case, are relevant in subsequent section 103(k) proceedings. In this
case, not only is there not substantial evidence of an accident but the evidence compellingly
demonstrates the absence of an accident. That being the case, there was no “event of an
accident” upon which to base a section 103(k) order, and the issued section 103(k) order must be
vacated.16
C. We Need Not Consider the Second Modification to the Order
On February 25, Inspector Naas modified the section 103(k) order, releasing the area at
issue for normal operations. However, on February 26, Inspector Naas made a second
modification to the order, removing the air compressor from service. On March 15, the operator
requested an expedited hearing on the section 103(k) order, a request the Judge denied on March
30. Throughout this period, MSHA continued to hold the compressor. A few days later, on
April 4, MSHA decided to terminate the order. Therefore, the second modification, which
removed a compressor from service, remained in effect from February 26 to April 4. There is no
evidence in the record regarding whether MHSA did any testing of the compressor after it took
control of it, let alone evidence of findings of such testing.17
The operator claims that the Judge erred in finding that the second modification to the
order was reasonably tailored to the circumstances at issue. In addition, the operator contends
that, by denying its request for an expedited hearing, the Judge failed to provide a remedy for
MSHA’s failure to release the compressor.
The second modification was limited to the removal of a specific piece of equipment, and
was subsequently modified permitting the equipment’s return to service without restriction prior
to the adjudication of the section 103(k) order. Hence, the operator’s arguments regarding the
modification are subsumed in the general issue of whether the section 103(k) order is valid. For

16

M-Class obeyed the order throughout its duration. Therefore, we need not consider
application of penalties for disobeying a section 103(k) order while it is in force if the order is
later vacated. Case law provides a strong caution to any operator contemplating such ill-advised
action. DQ Fire & Explosion Consultants, Inc., 36 FMSHRC 3090 (Dec. 2014) (finding that a
citation issued for an operator’s non-compliance with a section 103(k) order should be
designated high negligence) aff’d by 632 Fed.Appx. 622 (D.C. Cir. 2015) (upholding our
determination of high negligence). In Wyoming Fuel, 14 FMSHRC at 1293, we also found that
an invalid imminent danger order did not excuse non-compliance/ disobedience with that order
(“we find no indication in the Mine Act . . . that the validity of an imminent danger order is a
prerequisite to finding failure to comply with that order”).
17

Of course, a section 103(k) order may not be used improperly to allow MSHA to
pursue matters beyond the regular administration of the Mine Act as applied to a specific
operator. Misuse of a section 103(k) order would be a serious abuse.

42 FMSHRC Page 507

those reasons, and since we have vacated the specific order, we need not address arguments
related to the second modification and decline to do so.
IV.
Conclusion
For the foregoing reasons, the Judge’s decision finding an accident is reversed, and Order
No. 9104295 is vacated.

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

/s/ Michael G. Young
Michael G. Young, Commissioner

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

42 FMSHRC Page 508

Commissioner Jordan, dissenting:
The section 103(k) order at issue here has been terminated.1 Nothing the Commission
can say or do will have any concrete effect on the operator or its use of the air compressor.
Accordingly, this case is moot, and thus the Commission is without jurisdiction to decide it.
A. This Case is Moot
A case is moot when “the issues presented no longer exist or the parties no longer have a
legally cognizable interest in the outcome.” North American Drillers, LLC, 34 FMSHRC 352,
358 (Feb. 2012), citing Climax Molybdenum Co., 703 F.2d 4476, 451-52 (10th Cir. 1983). Here,
because the initial section 103(k) order was terminated and the air compressor was subsequently
released back into service with no restrictions on its use, the order does not affect any activities
at the mine. In fact, the mine has the right to continue to operate as if the section 103(k) order
never existed. The operator’s financial interests are not at stake because no penalty was issued.
There is simply no justiciable controversy at issue, as the operator has no tangible interest in the
outcome. Despite the contentions of my colleagues, even if the Commission were to vacate the
order, this would have no practical impact on M-Class.
Nevertheless, the majority claims that the operator has a “legally cognizable interest” in
having the terminated 103(k) order vacated. Slip op. at 6-7. But they fail to identify any but the
most speculative of legal consequences.
My colleagues acknowledge that the section 103(k) order does not allege a violation of
any health or safety standard. Slip op. at 6. Furthermore, the Secretary does not factor the
issuance of a section 103(k) order into any of the progressive enforcement mechanisms under the
Mine Act, e.g. penalty proposals pursuant to section 110, 30 U.S.C. § 820, or pattern of
violations under section 104(e), 30 U.S.C. § 814(e). In addition, because neither this type of
order nor an accident that triggers it constitutes a violation, the issuance of such an order is not
considered in a mine’s history of violations for purposes of MSHA’s future proposed penalty
assessments.

1

Section 103(k) of the Mine Act states:
In the event of any accident occurring in a coal or other mine, an
authorized representative of the Secretary, when present, may issue
such orders as he deems appropriate to insure the safety of any
person in the coal or other mine, and the operator of such mine
shall obtain the approval of such representative, in consultation
with appropriate State representatives, when feasible, of any plan
to recover any person in such mine or to recover the coal or other
mine or return affected areas of such mine to normal.

30 U.S.C. § 813(k).

42 FMSHRC Page 509

Nonetheless, the majority makes the vague assertion that “[t]he mere listing of an
‘accident,” in the form of a section 103(k) order, in the compliance history of a mine, is a clear
implication to the public that something occurred at that mine that affected the health and safety
of miners.” Slip op at 6. My colleagues appear to be suggesting that the Commission should use
its resources to decide this case so that M-Class will have the opportunity to vindicate its
reputation. However, they fail to persuasively explain what economic, psychic or other harm
will befall an operator whose record indicates that it was subject to a section 103(k) order.2
Members of the mining community are well aware that, while perhaps not welcome, such
orders are not uncommon.3 They are not a per se black mark against an operator’s reputation.
Even if they were, the majority points to no legal precedent supporting the view that reputational
harm is a cognizable interest under the Mine Act. As the D.C. Circuit has cautioned, “[a]t some
point . . . claims of reputational injury can be too vague and unsubstantiated to preserve a case
from mootness.” McBryde v. Comm. to Review Circuit Council Conduct and Disability Orders
of the Judicial Conference of the United States, 264 F.3d 52, 57 (D.C. Cir. 2001). This is an apt
description of the majority’s assertions here.
Also speculative is the majority’s supposition that MSHA might modify the terminated
section 103(k) order to allege a violation of a health or safety standard, which would then
adversely affect the operator’s repeat violation history. Slip op. at 7. Why MSHA would do so
more than two years after this incident occurred is mystifying. Whether MSHA would have the
legal authority to do so is unclear. My colleagues cite to no precedent in which, after a hearing
and an appeal to the Commission, MSHA has attempted to modify a section 103(k) order to
charge a violation.4

2

As a threshold matter, they also fail to substantiate their implicit premise that members
of the public would either be motivated to research M-Class’s safety record, or would be
scrolling through the Mine Safety and Health Administration’s extensive Data Retrieval System
(where this information is displayed), and would thereupon determine that M-Class had been
subject to a section 103(k) order.
3

According to the MSHA Mine Data Retrieval System, M-Class received 14 section
103(k) orders in 2018 and 10 in 2019. That system also reveals that approximately 40 accidents
occurred at the mine in 2018, but the events of February 24 that led to the section 103(k) order at
issue here are not included among them.
4

The cases they rely on, slip op. at 7, do not even mention the modification of such
orders. Rather, in Wyoming Fuel Co., 14 FMSHRC 1282, 1288-89 (Aug. 1992), the
Commission held that modification of a citation to a different safety standard was not precluded.
In Ten-A Coal Co., 14 FMSHRC 1296, 1298 (Aug. 1992), we permitted a modification of a
citation to a section 104(d) withdrawal order 24 hours after the termination of the original
citation. Finally, we recognized the Secretary’s right to modify a section 107(d) imminent
danger order to allege a violation in Westmoreland Coal Co., 8 FMSHRC 1317, 1328 (Sept.
1986) because the Mine Act explicitly states that the issuance of an imminent danger order shall
not preclude the issuance of a citation under section 104. 30 U.S.C. § 817(a).

42 FMSHRC Page 510

They also fail to take into account that a mine inspector has no choice but to issue a
citation whenever the inspector observes a violation of a mandatory safety standard. 30 U.S.C.
§ 814(a) (“If, upon inspection or investigation, the Secretary or his authorized representative
believes that an operator of a coal or other mine . . . has violated this Act, or any mandatory
health or safety standard, rule, order, or regulation promulgated pursuant to this Act, he shall,
with reasonable promptness, issue a citation to the operator.”) (emphasis added). Thus the
Secretary must issue a citation upon discovery of any violation of a mandatory standard. Thus,
operators are cited whenever an inspector finds a violative condition, whether or not a section
103(k) order is in place. Hence, the majority’s concern regarding a possible modification of the
section 103(k) order to a citation is completely unfounded.
B. The “Capable of Repetition yet Evading Review” Exception to the Mootness
Doctrine Does Not Apply in this Case
My colleagues also rely on a frequently-used exception to claims of mootness,
concluding that this issue is capable of repetition yet evading review. Slip op. at 7-8. However,
a careful examination of the purpose of this exception and the case-law interpreting it
demonstrates that it does not apply to this case.
The courts have sensibly carved out this exception in cases where a dispute between the
parties is resolved before a ruling can be handed down, and when there is a substantial likelihood
that the question will recur. North American Drillers, 34 FMSHRC at 358. There is a sound
rationale for this doctrine: if a party can establish that the duration of a challenged action is too
short to be litigated before it expires and there is a reasonable expectation that the party will be
subjected to the same action again, a legal ruling relevant to that future action is a justifiable use
of a court’s resources. This is so because the ruling will be relevant in subsequent proceedings
where the same issue appears. Here though, it is unlikely that the majority’s opinion, which is
based almost entirely on its analysis of the singular circumstances presented in this proceeding,
will be the basis of a ruling in a future case.
Although the majority attempts to characterize this controversy as a legal one, infra at 67, its ruling is clearly based on my colleagues’ view of the evidentiary record. See Slip op. at 1215. The fact-based controversy before us involves specific inquiries such as (1) whether the
miner in fact had carbon monoxide poisoning; (2) if he did, was it caused by something in the
mine; (3) could the air compressor have caused his illness? Resolution of these questions will in
all probability be irrelevant in subsequent section 103(k) proceedings.5

5

Nonetheless, the majority relies on the concept that a case is not moot when an “agency
terminates an enforcement action when challenged, but retains the ability to file subsequent
actions because its enforcement action has not been adjudicated as improper.” Slip op. at 8. But
the only enforcement action the majority adjudicates as “improper” in this case is the Secretary’s
decision to issue an order under section 103(k) when a miner was hospitalized for carbon
monoxide poisoning. I daresay that the chances of this unique situation being repeated in
subsequent cases are slim, and even if this fact pattern occurs again, the specific circumstances
might lead to a different legal result.

42 FMSHRC Page 511

In this regard, this case is similar to North American Drillers, 34 FMSHRC at 352. In
North American Drillers, the operator was charged with violating its shaft plan because it used
non-permissible equipment. The Secretary subsequently vacated the citation and the Judge
dismissed the proceedings as moot. North American argued that this was erroneous because it
faced recurrent harm, given that the Secretary allegedly declared that he would continue to
enforce the permissibility regulation against the operator in the future under identical
circumstances. The Commission disagreed, stating:
Shaft plans are mine-specific and are thus designed to address the
unique conditions of a particular mine. . . . Therefore, whether
North American is cited in the future for use of a non-permissible
pump below the shaft collar will have to be considered in the
context of the specific language of the plan in question. . . . Thus
there is not a substantial likelihood that the question before us will
reoccur, causing North American additional harm. Hence,
resolution of whether North American violated the shaft plan . . . is
not determinative of whether North American will violate some
other plan for failure to use permissible equipment.
Id. at 359. See also Spivey v. Barry, 665 F.2d 1222, 1234-35 (D.C. Cir. 1981) (concluding that
case was moot because “[a] legal controversy so sharply focused on a unique factual context
does not present ‘a reasonable expectation that the same complaining party would be subjected to
the same actions again”).
Clearly the series of events here that led to the initial section 103(k) order and the
subsequent removal of the air compressor were “idiosyncratic and highly unlikely to recur.” See
Marek v. Rhode Island, 702 F.3d 650, 654 (1st Cir. 2012) (concluding that the exception did not
apply in a case in which an opponent of a planned development appealed the issuance of a permit
but the permit expired and the development proposal was abandoned); see also Hamilton v.
Bromley, 862 F.3d 329, 336 (3rd Cir. 2017) (ruling that the case was moot because the ‘“conduct
complained of was . . . necessarily predicated on the unique features of [a] particular series of
[events]’ and ‘[n]othing on this record apprises us of the likelihood of a similar chain of events.’”
(citation omitted)); Fund for Animals, Inc. v. U.S. Bureau of Land Management, 460 F.3d 13,
23 (D.C. Cir. 2006) (case could not be saved from mootness because it was “highly dependent
upon a series of facts unlikely to be duplicated in the future”); PETA v. Gittens, 396 F.3d 416,
424 (D.C. Cir. 2005) (finding a First Amendment challenge moot because “[t]o conclude that a
dispute like this would arise in the future requires us to imagine a sequence of coincidences too
long to credit. . . . The essential point is that the case before us is highly dependent upon a series
of facts unlikely to be duplicated in the future”). Thus a Commission decision as to whether
MSHA erred in closing a portion of this mine for a finite period of time will in all likelihood not
inform future controversies regarding section 103(k) orders. See Public Utilities Comm. of the
State of Cal. v. FERC, 100 F.3d 1451, 1460 (9th Cir. 1996) (“When resolution of a controversy
depends on facts that are unique or unlikely to be repeated, the action is not capable of repetition
and hence is moot”).

42 FMSHRC Page 512

Perhaps mindful of the one-of-a-kind fact pattern underlying this case, my colleagues
repeatedly invoke the potential reoccurrence of a “general legal wrong,” Slip op. at 8, as a
rationale for going forward with this matter. They characterize such wrong as “the harmful
impact of section 103(k) orders on the operator’s ability to use equipment at a mine,” and cite to
the removal of the air compressor as justifying the adjudication of this matter. Slip op. at 8.
Ironically, although they rely on its removal as a reason to go forward with this case, Slip op. at
8, they ultimately conclude that they need not address this issue. Slip op. at 17.
As the D.C. Circuit has cautioned, when defining “the injury that is capable of
repetition”:
[t]he opportunities for manipulation are great. The more broadly
we define the wrongful conduct, the more numerous are the
possible examples, and the greater the likelihood of repetition. . .
.[W]here plaintiffs are resisting a mootness claim we think they
must be estopped to assert a broader notion of their injury than the
one on which they originally sought relief. Cf. Tallahassee
Memorial Regional Med. Ctr. v. Bowen, 815 F.2d 1435, 1449-50 &
n. 28 (11th Cir. 1987) (looking to complaint to determine scope of
plaintiff’s alleged injury).
Clarke v. U.S., 915 F.2d 699, 703 (D.C. Cir. 1990) (en banc).
My colleagues’ reliance on Performance Coal Co., 642 F.3d 234 (D.C. Cir. 2011) is also
unavailing. That case, which the Court held was not moot, involved the Secretary’s modification
of a section 103(k) order. The operator sought temporary relief from the restrictions pursuant to
section 105(b)(2) of the Mine Act. 30 U.S.C. § 815(b)(2). Before the Court could rule, the
Secretary removed the offending protocols. The issue before the Court was one of classic
statutory interpretation: does section 105(b) of the Mine Act permit an operator to seek
temporary relief from a section 103(k) order? Resolution of this question clearly had
ramifications for future cases in which temporary relief is requested under similar circumstances.
Unlike the instant case, in Performance Coal, the legitimacy of the section 103(k) order
was not at issue. In ruling on the mootness question, the Court made this clear, stating that “[t]he
question then is not whether Performance Coal will again be subjected to the precise protocols at
issue, but whether it will be subjected to further modifications from which it will seek temporary
relief.” Id. at 237.
In analyzing the “capable of repetition yet evading review” exception, the First Circuit
has noted:
the exception is not a juju, capable of dispelling mootness by mere
invocation. Rather, the exception applies only if there is “a
‘reasonable expectation’ or a ‘demonstrated probability’ that the
same controversy will recur involving the same complaining
party.” Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 1184,

42 FMSHRC Page 513

71 L.Ed.2d 353 (1982) (quoting Weinstein v. Bradford, 423 U.S.
147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975)).
Oakville Dev. Corp. v. F.D.I.C., 986 F.2d 611, 614–15 (1st Cir. 1993). Because this test has not
been met here, this exception to the mootness doctrine does not apply.
In sum, because the adjudication of this case will provide no tangible legal benefit to the
operator, and because it does not meet the standard for the exception to the mootness doctrine, I
conclude that the matter is moot. Consequently, the Commission has no jurisdiction to hear this
case. Accordingly, I respectfully dissent.

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

42 FMSHRC Page 514

Commissioner Traynor concurring in part and dissenting in part:
I join my colleague Commissioner Jordan to conclude M-Class’s contest of the section
103(k) “control order” is moot. However, I join the majority’s decision to review the order
under an exception to the mootness doctrine. But the majority’s misapplication of the incorrect
standard of review leaves me no choice but to strongly dissent from their judgment. My
colleagues ignore that our review of the issuance or modification of a section 103(k) order looks
to whether the agency’s discretionary decision was reasonable based on the facts known to the
inspector at the time the decision was made. We do not engage in a retrospective secondguessing of the issuance of a section 103(k) order using information the decision-maker only
knew or could have known after the decision was made. I also dissent from the majority’s
attempt to limit the issuance of section 103(k) orders to “accidents” where the Secretary is able
to prove the specific cause of the injury by a preponderance of the evidence.
On February 24, 2018, MSHA Inspector Brandon Naas arrived at the M-Class No. 1
underground mine to conduct an investigation into the injuries that hospitalized miner Mitchell
Mullins. Naas issued an order pursuant to section 103(k) of the Mine Act to suspend operations
at the Headgate #6 section.1 Naas started his investigation by reviewing pertinent records,
including those of the mine’s carbon monoxide monitoring system. Naas was not able to locate
the injured miner’s gas spotter, which would have indicated if he had been personally exposed to
elevated levels of carbon monoxide. The inspector proceeded underground and took carbon
monoxide measurements around Headgate #6. Naas did not find any evidence of elevated levels
of carbon monoxide or any other dangerous conditions and, accordingly, modified the 103(k)
order to permit M-Class to resume normal mining operations in the area.
On February 26, Naas returned and interviewed other miners who had worked with
Mullins on February 24. He learned that Mullins had been operating and working around the
diesel air compressor prior to falling ill and this was the only piece of equipment in use to which
Mullins was not regularly exposed. Naas modified the section 103(k) order to prohibit further
use of the compressor pending an investigation into whether it was defective. On March 1, MClass submitted a proposed action plan to prevent exposure to carbon monoxide. MSHA
determined that the proposal was insufficient. On March 15, M-Class contested the order with
the Commission. On April 4, MSHA terminated the order.
A. M-Class’s Contest of the Order is Moot, but Review is Appropriate under an
Exception to the Mootness Doctrine.
I join Part A of Commissioner Jordan’s dissenting opinion, finding the operator’s case is
entirely moot. Slip op. at 19-21.
However, I join my colleagues in the majority taking review of the decision below under
the ‘capable of repetition but evading review’ exception to the mootness doctrine. The exception
1

Section 103(k) of the Mine Act provides in pertinent part that “[in] the event of any
accident occurring in a coal or other mine, an authorized representative of the Secretary, when
present, may issue such orders as he deems appropriate to insure the safety of any person . . . .”
30 U.S.C. § 813(k) (emphasis added).

42 FMSHRC Page 515

applies when “(1) the challenged action [is] in its duration too short to be fully litigated prior to
its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining
party [will] be subjected to the same action again.” Weinstein v. Bradford, 423 U.S. 147, 149
(1975). When examining whether the action at issue is likely to repeat, “it is not whether the
precise historical facts that spawned the plaintiff's claims are likely to recur, but instead whether
the legal wrong complained of by the plaintiff is reasonably likely to recur.” Performance Coal
Co. v. FMSHRC, 642 F.3d 234, 237 (D.C. Cir. 2011) (quoting DelMonte Fresh Produce v.
United States, 570 F.3d 316, 324 (D.C. Cir. 2009)).
I find that a condition imposed during the pendency of the order – the restriction against
using certain equipment – is a putative harm capable of repetition, but otherwise evading review
because the pendency of a 103(k) order is often too short to be fully litigated. Slip op. at 7-9.
Therefore, I agree it is appropriate here to take review of the otherwise moot question of whether
the challenged decisions to issue and modify the now terminated 103(k) order were an abuse of
discretion.
B. The MSHA Inspector Did Not Abuse his Discretion in Issuing and Modifying the
section 103(k) order.
Section 103(k) provides an MSHA inspector the authority to “assume control of the mine
in the event of an accident.” Jim Walter Res., Inc., 37 FMSHRC 1868, 1868 n.1 (Sep. 2015); see
e.g., DQ Fire & Explosion Consultants, Inc., 36 FMSHRC 3090, 3091 (Dec. 2014) (section
103(k) order issued following an explosion that killed 29 miners at a coal mine). It provides the
inspector the “plenary power to make post-accident orders for the protection and safety of all
persons.” Miller Mining Co., v. FMSHRC, 713 F.2d 487, 490 (9th Cir. 1983).
The Commission reviews the issuance of a section 103(k) order, the scope of the order
and any subsequent modification for an abuse of discretion.2 See Jim Walters, 37 FMSHRC at
1871; see also Pattison Sand Co. v FMSHRC, 688 F.3d 507, 513 (8th Cir. 2012). “Given the
broad discretion afforded the Secretary, her issuance of a 103(k) order, or subsequent
modification, is reviewable for an abuse of discretion.” Clintwood Elkhorn Mining Co., 32
FMSHRC 1880, 1893-94 (Dec. 2010). Under the abuse of discretion standard, the Judge
considers whether “the agency examine[d] the relevant data and articulate[d] a satisfactory
explanation for its actions including a rational connection between the facts found and the choice
made.” Id. at 1893-94.
Consistent with the purpose and nature of abuse of discretion review, a reviewing court
looks to whether the challenged decision bears a rational connection to the facts and information
available to the decision-maker at the time the relevant discretionary decision was made. See
PBGC v. LTV Corp., 496 U.S. 633, 654 (1990) (under an abuse of discretion standard the court
2

A mine operator that contests issuance or modification of a section 103(k) order may
move for expedited consideration of its contest pursuant to Commission Procedural Rule 52, 20
C.F.R. § 2700.52. The grant or denial of a motion for expedited review is within the discretion
of the Judge, but exercise of the discretion should take into consideration the parties’ positions as
to the likelihood expedited review would prevent substantial harm.

42 FMSHRC Page 516

evaluates “the agency’s rationale at the time of decision.”). “When examining whether an
agency decision "was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law,’ as specified in 5 U.S.C. § 706(2) (A) . . . the focal point for judicial
review should be the administrative record already in existence, not some new record made
initially in the reviewing court." Camp v. Pitts, 411 U.S. 138, 142 (1973); see, e.g. Golden Oak
Mining, 12 FMSHRC 1360, 1365 (June 1990) (ALJ) (“In determining whether [a District
Manager] abused his discretion, I have to look to the facts and circumstances which were made
known to him at the time. Subsequent developments or changes in the mine situation cannot be
used to show an abuse of discretion.”)
Thus, Commission Judges review a decision to issue, modify, continue or terminate a
section 103(k) order by looking to whether the decision was rationally connected to the facts
before the decision-maker, and not whether such facts were supported by substantial evidence.3
The Commission in turn gives de novo review to our Judges’ determinations as to whether
agency action is arbitrary and capricious, and we review our Judges’ findings of fact for
substantial evidence. Pattison Sand, 688 F.3d at 514 (holding that a judge’s findings of fact - not
the factual predicates for the inspector’s discretionary decision-making - are subject to
substantial evidence review).
Here, the MSHA inspector’s decision to issue the section 103(k) order was rationally
based on the information available to him. He determined that a miner was working in the mine,
experienced a headache, dizziness, chest pains, a rapid heart rate, and difficulty breathing. The
miner – Mitchell Mullins - was administered oxygen and evacuated by ambulance to the local
hospital where the treating physician diagnosed him with carbon monoxide poisoning.4 Mullins
had been working in close proximity to a diesel motor exhausting carbon monoxide. On the
basis of this information, the inspector reasonably concluded there had been an “injury to . . . [a]
person” at the mine and thus an “accident” according to section 3(k). Accordingly, I would
affirm the Judge’s conclusion that the inspector did not abuse his discretion in issuing the order.
Furthermore, I would affirm the Judge’s conclusion that the inspector did not abuse his
discretion in modifying the order based upon his belief that a miner suffered carbon monoxide
poisoning. See Miller Mining Co. v. FMSHRC, 713 F.2d 487, 490 (9th Cir. 1983) (requiring
modifications of section 103(k) orders to be “reasonably tailored to the situation.”). First,
Inspector Naas quickly modified the order to allow the return of normal mining after concluding
that there was no present danger to miners in the Headgate #6 section. Naas later modified the
order to prevent the return of the air compressor to service pending further investigation for a
3

The “substantial evidence” test can be applied to set aside agency action only in
“certain narrow, specifically limited situations.” Citizens to Preserve Overton Park, Inc. v.
Volpe, 401 U.S. 402, 414 (1971) (overruled on other grounds, Califano v. Sanders, 430 U.S. 99,
105 (1977)). “Review under the substantial-evidence test is authorized only when the agency
action is taken pursuant to a rulemaking provision of the Administrative Procedure Act itself, or
when the agency action is based on a public adjudicatory hearing.” Citizens to Preserve Overton
Park, 401 U.S. at 414.
4

Mullins went on to spend 72 hours in the hospital on 100% oxygen.

42 FMSHRC Page 517

defect. Mullins had operated the compressor immediately before his hospitalization. No other
potential cause of the injuries was identified during the investigation. M-Class failed to produce
Mullins’ gas spotter to investigators. I conclude that substantial evidence supports a finding that
the modification to the order was rationally connected to the facts then available to MSHA and
the temporary removal of the diesel air compressor was reasonably tailored to the situation. The
record evidence fully supports a finding that the inspector did not abuse his discretion.
C. The Majority Errs in their Interpretation of the term “Accident.”
Section 103(k) provides the Secretary the authority to issue a control order “in the event
of an accident.” According to the statutory text at section 3(k) of the Act, an “‘accident’ includes
a mine explosion, mine ignition, mine fire, or mine inundation, or injury to, or death of, any
person.” 30 U.S.C. § 802(k) (emphasis added).5 In Pattison Sand, 688 F.3d at 512-13, the Court
held that the term “accident” should be interpreted expansively and section 3(k)’s use of the term
“includes” indicates that the enumerated list of types of accidents was not intended to be
exclusive. The Eighth Circuit held that it was appropriate to defer to the Secretary’s reasonable
interpretation of an “accident” and affirmed the Judge’s finding that a roof fall was an accident.
Id. at 513-14 (citing Sec’y of Labor v. Excel Mining, LLC, 334 F.3d 1, 6 (D.C. Cir. 2003)).
My colleagues ignore the Eight Circuit’s analysis in their majority opinion, including our
own precedents the Court relied upon to conclude that section 3(k) should be construed
expansively and in deference to the Secretary’s reasonable interpretation. Moreover, my
colleagues ignore that the plain language of section 3(k) provides that an “accident” includes an
“injury to . . . any person.” Misconstruing section 3(k), the majority fabricates a requirement
that for an “injury to . . . any person” to constitute an “accident” the Secretary must also provide
proof as to how the injury occurred. Slip op. at 9 (“the predicate for an accident must be an
incident or occurrence, or condition in a mine”). Because this interpretation is inconsistent with

5

We have held that an accident is “a necessary precondition to the issuance of a section
103(k) order.” Aluminum Co. of America, 15 FMSHRC 1821, 1824 (Sep. 1993) (“Alcoa”).
Thus, an MSHA agent may only issue a section 103(k) order where the decision to do so is
rationally connected to facts available to him or her indicating an “accident” under section 3(k)
has occurred. My colleagues claim that Alcoa also establishes that an “accident” must have a
predicate “incident, occurrence or condition in a mine.” Slip op. at 9. It does not. Alcoa
involved a section 103(k) order issued after an MSHA inspector observed evidence of mercury
contamination at a plant. The record contained no evidence of any resulting “injury” to any
miner. Accordingly, the Judge found that the Secretary failed to demonstrate the occurrence of
an “accident.” The Commission affirmed the Judge, stating that “[o]ur conclusion in this case is
based solely on the record developed before the judge” and that it did “not disagree with the
Secretary’s broad interpretation of section 103(k) of the Act.” 15 FMSHRC at 1828.

42 FMSHRC Page 518

the plain language of the Mine Act and produces absurd results, it is unlikely to be easily applied
in future enforcement proceedings.6
I would affirm the Judge’s finding of fact that an accident occurred. Substantial evidence
supports a finding that Mullins suffered an injury, subsequently diagnosed by a doctor as carbon
monoxide poisoning. Though reasonable minds may differ as to whether the balance of medical
and other evidence developed at hearing supports a conclusion that Mullins suffered an injury,
the Judge’s conclusion is supported by substantial evidence. And I have no hesitation deferring
to an interpretation of the term “injury” in section 103(k) as covering a doctor’s diagnosis of
carbon monoxide poisoning following the onset of physical symptoms that first manifested in
close proximity to a potential source of carbon monoxide and prompted his emergency
evacuation.
Nothing in the majority opinion should discourage MSHA inspectors from readily issuing
control orders under section 103(k) upon reaching a reasonable conclusion that an accident has
occurred when a miner has suffered an injury, even if it manifests only as an illness of
indeterminate etiology. Though the majority opines that the inspector did not have a statutory
basis for issuing the section 103(k) order, it must be emphasized that the majority agrees that the
issuance of the control order in this case was not an abuse of the inspector’s discretion. In
reality, it was the only reasonable course of action.

6

The majority’s interpretation is not only inconsistent with the plain text of the statute
and our precedents, it would lead to absurd results; an injury or death that resulted from an
unknown origin would not qualify as an “accident” and the Secretary would lack the authority
under section 103(k) to remove the remaining miners from the potential danger.
In addition, the majority’s requirement that the Secretary demonstrate the cause of the
injury in order to validly issue a section 103(k) order would narrow the broad discretion
Congress intended to provide MSHA to investigate injuries in mines and protect the life and
safety of miners. See slip op. at 9-10 n.9; S. Rep. No. 95-181, at 29 (1977), reprinted in Senate
Subcomm. on Labor, Comm. On Human Res., Legislative History of the Federal Mine Safety
and Health Act of 1977, at 617 (1978) (“The unpredictability of accidents in mines and
uncertainty as to the circumstances surrounding them requires that the Secretary . . . be permitted
to exercise broad discretion in order to protect the life or to insure the safety of any person.”).

42 FMSHRC Page 519

Substantial evidence supports the Judge’s finding that an “accident” occurred in this case.
Were that not so, and the order not already terminated (rendering any further contest moot), the
majority is correct that it would at that point need to be vacated. But that is neither the posture
nor the factual record before us, and because I find that the control order was validly issued and
modified, I would affirm.

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

42 FMSHRC Page 520

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

August 24, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos. CENT 2015-0318-RM
CENT 2015-0319-RM
CENT 2015-0441-M
CENT 2016-0055-M

v.
THE DOE RUN COMPANY

BEFORE: Rajkovich, Chairman; Jordan, Young, Althen and Traynor, Commissioners
DECISION
BY: Rajkovich, Chairman; Young and Althen, Commissioners
These proceedings arise under the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq. (2018) (“Mine Act” or “Act”). At issue is whether the Administrative Law
Judge erred in affirming two citations issued by the Department of Labor’s Mine Safety and
Health Administration (“MSHA”) to The Doe Run Company (“Doe Run”) at its Fletcher Mine,
an underground lead, copper, and zinc mine in Missouri.
Both citations arise from the fatality of a scaler operator, John Hoodenpyle. One citation
alleges that Doe Run failed to design and install an adequate support system to control the
ground in an area where miners worked or traveled in performing their assigned tasks, in
violation of 30 C.F.R. § 57.3360.1 The other citation alleges that Hoodenpyle was operating a
scaling machine from a location that exposed him to falling material, causing the fatality in
violation of 30 C.F.R. § 57.3201.2 Both violations were designated as significant and substantial
1

Section 57.3360 provides in pertinent part:
Ground support shall be used where ground conditions, or mining
experience in similar ground conditions in the mine, indicate that it
is necessary. When ground support is necessary, the support system
shall be designed, installed, and maintained to control the ground in
places where persons work or travel in performing their assigned
tasks.

30 C.F.R. § 57.3360.
2

Section 57.3201 states that “[s]caling shall be performed from a location which will not
expose persons to injury from falling material, or other protection from falling material shall be
provided.” 30 C.F.R. § 57.3201.

42 FMSHRC Page 521

(“S&S”).3 The ground support violation was alleged to be the result of high negligence and the
scaling violation designated as the result of moderate negligence.
In affirming both citations,4 the Judge concluded that the fatal roof fall5 established a
violation of both standards. 40 FMSHRC 1165, 1205-10 (July 2018) (ALJ). The Judge also
vacated the S&S designations and reduced both negligence designations to “low.”
Doe Run and the Secretary of Labor each filed a petition seeking discretionary review of
the Judge’s decision, both of which the Commission granted. As set forth below, we conclude
that the Judge erroneously failed to apply the “reasonably prudent person” test to the alleged
violations of the broadly-worded standards cited by the Secretary. Further, the cited standards
did not provide the operator with fair notice of the obligations the Secretary seeks to impose in
this enforcement action. Accordingly, we reverse the Judge’s findings of violation and vacate
the citations.
I.
Factual and Procedural Background
A.

Factual Background

Doe Run is a large mine operator in Missouri with six underground mines in what is
geologically known as the new Viburnum Trend (“The Trend”). The Trend is a 32.5 mile-long
lead, copper, zinc and ore deposit. The host rock in the Trend, including the Fletcher mine,6
is dolomitic limestone, or “dolomite,” an altered limestone that is very high in strength and
3

The S&S terminology is taken from section 104(d)(l) of the Act, which distinguishes as
more serious any violation that “could significantly and substantially contribute to the cause and
effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d)(l).
4

The Judge also vacated a third citation, Citation No. 8680902, which had alleged that
the operator had failed to conduct required workplace examination training, in violation of 30
C.F.R. § 48.7(a). 40 FMSHRC 1165, 1214-16 (July 2018) (ALJ). The Judge vacated the
citation on the basis that the Secretary had unduly prejudiced Doe Run by modifying the citation
in an untimely manner. Id. The Secretary does not seek review of this ruling.
5

This decision uses the terms “roof” and “back” interchangeably to refer to the roof of
the mine. Similarly, the decision uses the terms “roof fall” and “ground fall” interchangeably to
refer to roof falls.
6

The Fletcher Mine is designed in a modified room and pillar format, meaning that
pillars are left to support the roof as working headings are advanced. Mine drifts, or tunnels, are
typically 28 to 32 feet wide while the pillar widths average between 30 and 32 feet. The roof
height generally ranges from 16 to 120 feet. Fletcher’s typical mine cycle consists of (1) face
drilling of holes; (2) hole charging and blasting; (3) post-blast muck and rock loading and
haulage; (4) scaling (both mechanical and high boom hand scaling); and (5) roof bolting.

42 FMSHRC Page 522

stability. Consequently, the ground conditions at Fletcher and throughout the Trend were
described by witnesses from both sides as generally “stable” (Tr. 217-18), and “competent,”
with no significant issues in the stability of the host rock. Tr. 424-25.
Despite these general conditions, a fatal roof fall occurred on January 21, 2015.
About 175 tons of rock – a section 55 feet long by 20 feet wide by 6 feet deep – collapsed onto a
mechanical scaling machine that Hoodenpyle was operating.7 Tr. 73, 647. He was inside the
scaler’s reinforced cab about 60 feet from the face. Tr. 206-07. The roof fall crushed and killed
him. The cab was under the bolted area when the roof fell. Tr. 311.
Approximately 75% of the fall area was unbolted, and 25% was bolted with six-foot Split
Set friction stabilizer bolts. Tr. 114, 195, 252. The scaler had a reinforced cab with a falling
object protection system (“FOPS”). In addition to the reinforced cab, the scaler also had a
rollover protection system (“ROPS”). During an MSHA inspection the day before the accident,
both the scaler and the ROPS/FOPS operator’s compartment were found to be in good
operational condition with no damage.
Before the accident, another miner working in the area, Thomas Welch, heard
Hoodenpyle start and begin to use the scaler around 10:00 pm. Tr. 513; S. Ex. 8 at 3.
Welch recalled seeing the roof bolts in that area and testified that “everything looked fine.”
Tr. 519. Hoodenpyle scaled for about 15 minutes before Welch heard the loud sound of a roof
collapse. “It sound[ed] like a lot of rock.” Tr. 513-14. He could no longer hear the scaler after
the collapse.
Vern Roark, a roof bolter with 18 years of roof bolting experience, testified that on
January 5, 2015, he had installed Split Set bolts in the area of the accident. He had examined the
area on arrival and said everything “looked perfectly fine.” Tr. 466. Roark testified that
“[t]he back was fine. There was no loose on it. It was in good color, solid, no voids in it.”
Tr. 467. Roark also drilled a hole and sounded the back once he set his bolting machine up. He
testified that the back was solid with no “drumminess” indicating a hollow area or void above the
roof. Tr. 467.

7

Blasting often creates the need for scaling the unstable or loose material from the roof
and sidewalls, which may be done by hand or by the use of specialized equipment such as a
mechanical scaler. Tr. 429-30. This machine was a Getman S330 Mechanical Scaler with a roof
scaling coverage range of 9.8 feet to 29.5 feet and a rib scaling coverage ranging up to 29.5 feet.
Sec. Ex. 8, at 6 (MSHA’s accident investigation report). The single extension boom allowed for
an advancement of over 13.1 feet from a single setup, allowing the operator to stay in a
reinforced cab while extending the reach. The scaler with the boom was approximately 40 feet
long and 8 feet high. Id. The scaler’s operator cab was located at the extreme rear of the
machine and was designed to keep the operator at the farthest point away from the scaling work,
as the material is removed. Tr. 434-35.

42 FMSHRC Page 523

MSHA Inspector Jeremy Kennedy8 had conducted an inspection of the mine about eight
hours before the January 21 accident. According to Inspector Kennedy, the active faces and
active roadway in the area had all been free of adverse conditions. Kennedy performed a visual
inspection of the back and ribs and walked up to the face between pillars 7517 and 7561, the area
of the eventual fall. He testified that he had not noticed anything unusual on the face and had not
observed any “change” that would have indicated the existence of adverse ground conditions.
Tr. 105. The pillars had appeared to be adequately sized, with nothing out of the ordinary, and
the widths of the drifts and crosscuts had been normal. In addition, regarding the entire area
inspected, Kennedy had written “no loose noted” and “ok” in his General Field Notes. Tr. 101;
DR Ex. AA at 3.
Kennedy had not observed “anything that was not typical” when he walked directly under
the back that would fall later that evening. Tr. 57, 102. He testified that the back had looked
smooth and “didn’t seem to have any unusual features to it.” Tr. 59-60, 102. He further testified
that he had not recalled seeing any churned or disrupted rock in the area and had not noticed any
loose ground. He had also inspected the ground support in the area and testified that everything
had appeared accurate. He had inspected the last two rows of bolts between pillars 7508 and
7516 (the bolts that would later fall) and they appeared adequately installed and flush to the
back. Kennedy also had not noticed any abnormal noises such as popping or cracking.
In sum, he observed nothing abnormal and nothing that would cause him concern about
hazardous ground conditions.
MSHA Inspector Michael Van Dorn led the agency’s investigation into the accident,
joined by inspector Kennedy, geologist James Vadnal, and engineer Gregory Rumbaugh from
MSHA Technical Support. On June 10, 2015, MSHA issued its accident investigation report.
The report did not identify the precise geological cause of the roof fall, nor did any of the
witnesses do so definitively at the hearing. The report concluded that Doe Run should have
drilled test holes before drilling holes for blasting to identify hazardous roof conditions and that
there should have been a more effective way for miners to communicate hazards to management.
S. Ex. 8 at 6-7. The report found that the roof fall occurred because the roof was not adequately
supported, and that resin bolts should have been used. Id. In addition, the report concluded that
the resin bolts should have been installed no more than 30 feet back from the face. S. Ex. 8 at 6.
On March 11, 2015, Van Dorn issued both citations. S. Ex. 1; S. Ex. 2.
At the time of the accident, Doe Run was complying with its internal ground control
policy. The policy contained several requirements with respect to scaling, bolting and test holes.
It required, among other things, workplace examinations, scaling to begin no less than 60 feet
back from the face, and a 5x5 standard roof bolt pattern for intersections. The policy also
required one test hole per completed tunnel intersection. Tr. 429, 446, 449-50; DR Ex. F. The
area where the January 21, 2015 roof fall occurred was not a completed intersection. There had
been no unplanned reportable roof falls at Fletcher between the establishment of the revised
8

Inspector Kennedy worked at Doe Run for eight and a half years prior to going to work
for MSHA in 2009. He had previously worked underground at Doe Run’s Brushy Creek,
Sweetwater, and Fletcher mines, the last of which where he spent four years as a surveyor.
As an MSHA inspector, he had inspected Fletcher at least eight times.

42 FMSHRC Page 524

ground control policy in 19989 and the 2015 roof fall. According to the recollection of the
mine’s operations manager, Randall Hanning, MSHA repeatedly had the opportunity to review
Doe Run’s ground control policy and had never raised any objections to it before the accident
occurred.
B.

The Judge’s Decision

The Judge affirmed the violations of sections 57.3201 and 57.3360, holding that “where
there is an accidental roof fall causing death . . . the fact of the fatal accident itself, by reason of
strict liability, demonstrates a per se violation of the safety standard.” 40 FMSHRC at 1209
(emphasis omitted). In concluding that the facts of the case here constituted per se violations of
both those metal-nonmetal standards as he interpreted them, the Judge relied exclusively on the
Commission’s interpretation of the general roof control standard applicable to underground coal
mines, 30 C.F.R. § 75.202. Id. at 1207-09 (citing Jim Walter Res., Inc., 37 FMSHRC 493 (Mar.
2015) (“JWR”)).
In affirmatively holding that such an interpretative approach should be extended to the
non-nonmetal roof control standards at issue here, the Judge “intentionally decline[d] to address”
arguments made by both parties that the standards at issue instead be interpreted, and the
violations be determined, pursuant to the application of the Commission’s “reasonably prudent
person test.” Id. at 1209. The Judge conceded that “[s]uffice it to say that, given the plethora of
questions raised and unresolved, a prudent person test would have made the Secretary’s case as
to the fact of violation much more problematic.” Id.
The Judge went on to delete the S&S designations associated with both citations, finding
that the Secretary failed to provide “compelling indicia surrounding the instant violations that
would have suggested the reasonable likelihood of” a roof fall on Hoodenpyle while he scaled.
Id. at 1210. With specific reference to the S&S findings, the Judge rejected the Secretary’s
evidence of disrupted rock and found that the geologic features in the area would not have
indicated a reasonable likelihood of a roof fall. Id. at 1211. The Judge found that the scaler’s
position 60 feet from the face, its position under bolted roof, and its reinforced cab did not
“contribute[] to the reasonable likelihood of an injurious roof fall onto Hoodenpyle.” Id. at 1212.
The Judge also rejected the Secretary’s contention that Doe Run’s use of Split Set bolts,
rather than resin bolts, made a roof fall more likely. Id. at 1212-13. He noted that the Secretary
presented hearsay evidence of prior roof falls but appeared to reject that evidence. Id. at 121314. The Judge opined that “the etiological mystery at the heart of this accident,” i.e., the fact that
no one could definitively identify the precise geological cause of the roof fall, was relevant to the
S&S analysis. Id. at 1214.
9

The policy was revised in 1998 in response to the fatal roof fall at a separate Doe Run
mine (referred to in the transcripts as the “Casteel Mine”). Tr. 611, 633-34. There were no
section 57.3360 violations found in Fletcher Mine’s ten-year citation history. Tr. 528-29;
see generally DR Ex. O. There was one citation for a violation of section 57.3201, six years
prior, in 2009. Tr. 529; DR Ex. O at 29.

42 FMSHRC Page 525

Finally, in one sentence, without explanation (other than in a very brief footnote that only
addressed the scaling standard citation), the Judge reduced the negligence associated with both
citations to “low.” Id. at 1212 n.72.
II.
Disposition
A.

Summary of Relevant Law

In contests of citations and orders under the Mine Act, the Secretary bears the burden of
proving each element of the Mine Act standard allegedly violated. See, e.g., Stillwater Mining
Co. v. FMSHRC, 142 F.3d 1179, 1184 (9th Cir. 1998); Miller Mining Co. v. FMSHRC, 713 F.2d
487, 490 (9th Cir. 1983); Sims Crane, 41 FMSHRC 393, 396 (July 2019); Asarco, Inc., 14
FMSHRC 941, 950 (June 1992); Allied Chemical Corp., 6 FMSHRC 1854, 1857-59 (Aug.
1984).
In some instances, standards are written in such a way that the basic facts may
demonstrate that the conditions or practices prescribed or proscribed by a standard have been
violated. Such instances, wherein the bare facts may demonstrate a violation, are often referred
to as sufficient to constitute “per se” violations of the standard at issue. See, e.g., Cougar Coal
Co., 25 FMSHRC 513, 520 (Sept. 2003) (holding that miner’s electric shock, 18-foot fall, and
head injury “per se” met the requirement that an “accident” had occurred at the mine under the
cited standards). In those instances of such narrowly written standards, the facts of the alleged
violation, standing alone, prove the violation. The operator may be found “strictly liable” under
the standard, given that the facts, standing alone, show a violative practice or condition clearly
satisfying all the terms of the standard.10
In contrast, there are many Mine Act health and safety standards that are “simple and
brief[,] in order to be broadly adaptable to myriad circumstances.” Kerr-McGee Corp.,
3 FMSHRC 2496, 2497 (Nov. 1981); see also Alabama By-Products Corp., 4 FMSHRC 2128,
2130 (Dec. 1982). In those instances, as with any law or regulation, the standard must “give the
10

See, e.g., Peabody Coal Co., 1 FMSHRC 1494, 1495 (Oct. 1979) (finding that
operator could not escape liability due to its lack of prior knowledge of the violative condition of
the equipment where it met neither of two duties imposed upon it by equipment standard that did
not require such knowledge); El Paso Rock Quarries, Inc., 3 FMSHRC 35, 38-39 (Jan. 1981)
(finding operator strictly liable, even absent knowledge of equipment defect, because “unless the
standard itself so requires, an operator’s negligence has no bearing on the issue of whether a
violation occurred”); Clintwood Elkhorn Mining Co., 35 FMSHRC 635, 370 (Feb. 2013)
(upholding strict liability under the standard because the Secretary met his burden of establishing
a violation of section 77.1607(b) merely by demonstrating that the equipment operator failed to
maintain full control of equipment while it was in motion, and “[n]othing in the language of the
standard requires the Secretary to prove a causal or contributing factor for the loss of control”);
Wake Stone Corp., 36 FMSHRC 825, 826 (Apr. 2014) (imposing strict liability because a defect
in equipment established a violation of the terms of the standard).

42 FMSHRC Page 526

person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he
may act accordingly.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972); see also Phelps
Dodge Corp. v. FMSHRC, 681 F.2d 1189, 1193 (9th Cir. 1982) (refusing to apply a regulation
that “inadequately expresses an intention to reach the activities to which MSHA applied it”).
Consequently, a Mine Act standard must provide reasonable notice of what it requires or
proscribes. U.S. Steel Corp., 5 FMSHRC 3, 4 (Jan. 1983); see also Amax Chem. Corp., 8
FMSHRC 1146, 1149 (Aug. 1986) (rejecting finding a per se violation of a ground control
standard in the metal-nonmetal context and instead holding that “all relevant factors and
circumstances must be taken into account.”).
As a result, in interpreting and applying broadly worded mine safety and health standards
that pertain to a host of possible conditions and practices, the Commission, with the widespread
approval of the courts of appeals,11 has applied the “reasonably prudent person test” to determine
whether a violation has occurred. In other words, the inquiry is whether the standard prescribed
the obligation with sufficient specificity to provide an operator with adequate notice of the
requirements for compliance under the facts of the case. Then, the analysis turns on whether the
facts demonstrate noncompliance with the standard. See, e.g., Alabama By-Products, 4
FMSHRC at 2129-30; Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990) (requiring that
the Secretary establish that “a reasonably prudent person familiar with the mining industry and
the protective purposes of the standard would have recognized the specific prohibition or
requirement of the standard”); U.S. Steel, 5 FMSHRC at 5 (stating that in order to prove a
violation of a broadly-worded standard regulating mine safety, the Secretary must demonstrate
that the allegedly violative condition “do[es] not measure up to the kind that a reasonably
prudent person would provide under the circumstances. This evidence could include accepted
safety standards in the field of road construction . . . , considerations unique to the mining
industry, and the circumstances at the operator’s mine.”). Consequently, the standard must
describe the conditions or practices required or forbidden with sufficient specificity to provide
the operator with fair notice of the obligation. When a standard uses broad language, the
operator must act as a reasonably prudent person in meeting the obligation. If the operator acted
as a reasonably prudent operator, then no violation occurs and there is no liability.
11

See, e.g., Freeman United Coal Mining Co. v. FMSHRC, 108 F.3d 358, 362 (D.C. Cir.
1997) (“[R]egulations will be found to satisfy due process so long as they are sufficiently
specific that a reasonably prudent person, familiar with the conditions the regulations are meant
to address and the objectives the regulations are meant to achieve, would have fair warning of
what the regulations require.”); Walker Stone Co. v. Sec’y of Labor, 156 F.3d 1076, 1083 (10th
Cir. 1998) (quoting Freeman United, 108 F.3d at 362); Stillwater Mining Co. v. FMSHRC, 142
F.3d 1179, 1182 (9th Cir. 1998). Our dissenting colleague, Commissioner Traynor (slip op. at
40-41 n.12) is thus mistaken in relying on a 2011 decision from the D.C. District Court to argue
that under the Mine Act the reasonably prudent person test is only relevant with respect to the
imposition of penalties, and not the initial question of whether a violation occurred. See Black
Beauty Coal Co. v. FMSHRC, 703 F.3d 553, 558 (D.C. Cir. 2012) (“An accumulation exists if a
reasonably prudent person, familiar with the mining industry and the protective purpose of the
standard, would have recognized the hazardous condition that the regulation seeks to prevent.”)
(citation omitted).

42 FMSHRC Page 527

B.

The Judge Erred in Not Applying the Reasonably Prudent Person Test.

We must reverse the Judge’s findings of violations here because he committed basic legal
errors when analyzing the issues presented by the two citations. The Judge made little attempt to
evaluate the ample evidence proffered to determine Doe Run’s obligations under the cited
standards and whether Doe Run had failed to meet those obligations – the primary judicial
decisional rubric in any administrative adjudication. Tellingly, the Secretary here does not
support affirmance based on the Judge’s analysis.
1.

Mine Act Strict Liability Cannot Be Used as the Sole Justification to Find a
Per Se Violation of a Mine Act Standard.

We begin by addressing the Judge’s view, offered sua sponte, that strict liability under
the Mine Act frames the initial question of violations here. See 40 FMSHRC at 1205 (“Given
that the Mine Act is a strict liability statute and . . . that a miner was killed due to the fall of roof
material . . . were there per se violations . . . ?”). The Secretary’s post-hearing brief mentioned
strict liability only once and then only in a pro forma opening sentence of the argument.
Thereafter, he sought to sustain the alleged violations using only the “reasonably prudent person”
standard—the correct standard. See S. Post Hearing Br. at 20, 24-28. In fact, the Judge
explicitly recognized that both parties argued the merits under the reasonably prudent person test.
40 FMSHRC at 1205, 1207. He eventually concluded that strict liability dictated that “per se”
violations of the standards at issue here had been established by the fatality suffered. Id. at 120910.12
Such an approach was plain analytical error. Every determination of whether a Mine Act
standard was violated begins with addressing the specific terms of the standard in question.
See, e.g., Peabody Twentymile Mining, LLC, 931 F.3d 992, 996 (10th Cir. 2019). Here though,
the Judge’s discussion of the terms of the standards was only in passing, and even then was
either non-existent or perfunctory.
In finding that a per se violation of 30 C.F.R. § 57.3360 occurred, the Judge stated that
the standard “provides in pertinent part that the ground ‘support system be designed, installed,
and maintained to control ground in places where people work.’” 40 FMSHRC at 1209
(emphasis added). In so doing, the Judge failed to set forth the relevant terms of section 57.3360
in their full context. The relevant language of the standard actually states:
Ground support shall be used where ground conditions, or mining
experience in similar ground conditions in the mine, indicate that it
is necessary. When ground support is necessary, the support system
shall be designed, installed, and maintained to control the ground in

12

While the wording of his opinion suggests that the Judge might have intended his per
se analysis to be confined to fatalities caused by roof falls, his failure to consider the text of the
regulations does not support consideration for such a limitation.

42 FMSHRC Page 528

places where persons work or travel in performing their assigned
tasks.
30 C.F.R. § 57.3360. In purporting to interpret and apply the primary standard at issue in the
case, the Judge completely ignored the terms of the entire first, and thus prefatory, sentence of
the standard. That sentence requires the operator to apply ground support where the mining
conditions or experience in similar ground conditions indicate that it is necessary. The cardinal
principle of interpretation is to give effect, if possible, to every clause or word. See TRW Inc. v.
Andrews, 534 U.S. 19, 31 (2001). Regulatory interpretation cannot be properly undertaken in
any other manner. Again, it is the site-specific location that dictates the application of ground
support. That is precisely what Doe Run did here – apply ground support in the location where it
was necessary.
Regarding the other standard at issue here, 30 C.F.R. § 57.3201, in concluding that a per
se violation of it had been established, the Judge similarly truncated it. The standard provides
that “[s]caling shall be performed from a location which will not expose persons to injury from
falling material, or other protection from falling material shall be provided.” 30 C.F.R.
§ 57.3201 (emphasis added). The Judge, however, made no effort to interpret it, simply
concluding that that “[t]he operative language . . . is that ‘scaling shall be performed from a
location which will not expose persons to injury from falling material . . . .” 40 FMSHRC
at 1209 (emphasis added). In short, he impermissibly read out of the standard its entire second
prong.
The Judge confused the strict liability the Mine Act imposes for violations with an
entirely separate and different legal concept – common law strict liability for activities,
conditions or practices. See, e.g., Western Fuels-Utah, Inc. v. FMSHRC, 870 F.2d 711, 713
(D.C. Cir. 1989) (discussing the difference between Mine Act strict liability for an undisputed
violation of a coal mine roof control standard and strict liability under common law for the
consequences of ultrahazardous activities); see also Indiana Harbor Belt R. Co. v. Am.
Cyanamid Co., 916 F.2d 1174 (7th Cir. 1990) (applying Illinois law to determine whether there
was strict liability in tort for accident). In so doing, the Judge wholly disregarded the reasonably
prudent person test that is fundamental to interpretation of Mine Act standards such as the ones
at issue in this case.
There is operator liability for a mining condition or practice only if the condition or
practice is found to constitute a violation of the Mine Act or its standards. See Western FuelsUtah, 870 F.2d at 715; see also 30 U.S.C. §§ 814(a), 815(d). No “general duty clause” was
included in the Mine Act, unlike with section 5(a)(1) of the Occupational Safety and Health Act
of 1970. See 29 U.S.C. § 654(a)(1). Indeed, such a provision was specifically excluded from the
Mine Act. See S. Rep. No. 95-461, at 38-39 (1977), reprinted in Senate Subcomm. on Labor,
Comm. on Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977,
at 1316-17 (1978) (“Mine Act Legis. Hist.”).13
13

Immediately after invoking Mine Act strict liability as a basis for determining whether
the violations had been established, the Judge veered into a condemnatory denunciation of the
(continued…)

42 FMSHRC Page 529

The Judge’s error regarding the application of strict liability can be seen from his own
direct quote to the legislative history of the Mine Act’s predecessor statute, the Federal Coal
Mine Health and Safety Act of 1969 (“Coal Act”). See 40 FMSHRC at 1206 (“confirm[ing]”
that under section 109 of the Coal Act, the precursor to section 110 of the Mine Act, there was
“congressional intent that there should be ‘liability for violations of the standards against the
operator without regard to fault’”) (quoting H.R. Rep. No. 91-761, at 71 (1969), reprinted in
Senate Subcomm. on Labor, Comm. on Labor and Public Welfare, Part I Legislative History of
the Federal Coal Mine Health and Safety Act of 1969, at 1515 (1975) (emphasis added).
Further, both of the cases cited by the Judge as support for his strict liability analysis
(40 FMSHRC at 1205-06) were cases in which strict liability attached only after the entirely
separate question of whether a violation had been established was resolved on an entirely
independent basis. See Sewell Coal Co. v. FMSHRC, 686 F.2d 1066, 1070-71(4th Cir. 1982)
(rejecting contention that, due to an ongoing strike by some miners, operator should not be liable
for mine conditions that constituted undisputed violations of MSHA standards); Spartan Mining
Co., 30 FMSHRC 699, 706 (Aug. 2008) (“The Mine Act is a strict liability statute, such that an
operator will be held liable if a violation of a mandatory standard occurs regardless of the level
of fault.”) (emphasis added).

13

(…continued)
history of mining, excoriating “mine operators” and “lawyers, constabulary, and biased judicial
donees.” 40 FMSHRC at 1206-07. This diatribe, which the Judge included in a context where
he himself acknowledged its irrelevance, is completely out of line and detracts from the analysis.
Commission Judges should bear in mind that they are officers of the Commission. While Judges
are entitled to hold and express their own opinions privately, and while we do not suggest that
Judges should refrain from appropriate citations to history in rendering their decisions, irrelevant
dicta must be avoided. Ironically, the Judge, albeit by footnote, absolves the operator from
acting “reprehensibly.” Id. at 1206 n.61.

42 FMSHRC Page 530

Our colleagues, in their separate dissents in support of affirming the Judge’s erroneous
analysis, similarly misapply Mine Act precedent. They cite Sewell, Western Fuels-Utah,
Spartan, and a host of other court and Commission cases, which, while certainly speaking to an
operator’s liability once a violation is found, are far less relevant to the initial task of interpreting
a Mine Act standard to determine an operator’s obligations under it and whether a violation even
occurred. See slip op. at 25-27; 34, 36, 44-45 n.20.14 Simply put, strict liability under the Mine
Act is not a concept by which a mine operator can be found liable for an activity, condition or
practice for which it did not have sufficient notice to otherwise properly find the condition or
practice to constitute a violation of a health or safety standard.
2.

Neither Section 75.202(a) Nor JWR Govern the Interpretation of Sections
57.3360 and 57.3321.

The Judge’s misuse of the concept of strict liability was compounded by his improper
focus, in interpreting the standards at issue here, on Commission case law involving a
significantly different standard. The Judge looked to 30 C.F.R. § 75.202(a), and concluded that
both of “the mandatory safety standards at issue are essentially identical” to it in their “plain
meaning.” 40 FMSHRC at 1209 (emphasis added) (citing JWR, 37 FMSHRC at 495). They are
not identical. Section 75.202(a), the general ground control standard for underground coal
mines, simply reads “[t]he roof, face and ribs of areas where persons work or travel shall be
supported or otherwise controlled to protect persons from hazards related to falls of the roof, face
or ribs and coal or rock bursts.” 30 C.F.R. § 75.202(a).
It is, of course, correct that all three regulations are directed at preventing roof falls.
But any similarity ends there. Comparing the terms of section 75.202(a) to the terms of the two
standards at issue here, the language employed in the coal and metal-nonmetal standards is
strikingly different in both instances. Properly reviewed, there is virtually no commonality

14

See, e.g., Allied Prod. Co. v. FMSHRC, 666 F.2d 890, 893 (5th Cir. 1982) (after
upholding that equipment conditions constituted violation, rejecting contention that evidence of
significant employee misconduct should be taken into account in deciding whether to hold
operator liable for the violation); Miller Mining Co., 713 F.2d at 491 (describing strict liability as
holding an operator liable for “any failure to comply with a regulation under the Act [that]
result[s] in a citation”) (emphasis added); Northwestern Mining Dep’t v. FMSHRC, 868 F.2d
1195, 1197 (D.C. Cir. 1989) (upholding Commission’s finding that “once it was determined that
. . . a miner employed by Asarco[] violated a mandatory safety standard in Asarco’s . . . [m]ine,
Asarco, under the Mine Act, was subject to a civil penalty . . . and that the fact that Asarco’s
supervising employees were not at fault was not a defense to the citation”) (emphases added);
Ames Constr., Inc. v. FMSHRC, 676 F.3d 1109, 1110-12 (D.C. Cir. 2012) (rejecting productionoperator’s claim that strict liability for truck driver’s violation of the standard should not attach
to it); Musser Eng’g, Inc., 32 FMSHRC 1257, 1272 (Oct. 2010) (finding that an operator is
strictly liable “if a violation of a mandatory safety standard occurs”) (emphasis added); Nally &
Hamilton Enter., 38 FMSHRC 1644, 1651 (July 2016) (“[W]hen a miner fails to wear a seat belt
when operating a vehicle covered by [30 C.F.R. §] 77.1710(i), he violates th[at] standard. Then,
as required by [the Mine Act], the operator is liable for the violation.”) (emphasis added).

42 FMSHRC Page 531

between the short and direct obligation under section 75.202 and the broader language of the
subject regulations.
In reaching his decision, the Judge did not discuss any of these distinctions in language
between section 75.202(a) and the subject standards. As noted, he entirely omitted quoting the
prefatory sentence in section 57.3360, which, as discussed below, is crucial to understanding the
obligations the standard imposes upon operators. Commonality of any sort, including subject
matter, does not relieve the Commission or the Judge from the duty to examine the actual words
of the regulations. It is simply impossible to conclude that the terms of two or more standards
are “essentially identical” without analyzing all of the terms of those standards.
The difference in language in the standards leads us to also reject the claim that
Commission precedent, with respect to violations of section 75.202(a), controls interpretations of
the standards at issue here, and thus the findings of violations in this case. This includes the
Commission majority’s decision in the JWR roof fall fatality case, which largely focused on the
particular language of that standard in reaching its conclusion. Of course, that language did not
include anything remotely similar to the first sentence of section 57.3360 nor to any part of
section 57.3321.15
The significant difference between the language of the specific coal standard that
governed in JWR and the language of the metal-nonmetal regulations at issue here is not the only
reason to reject JWR are as controlling in this case. There is also a substantial distinction
between the regulation of roof control for coal mines and the regulation of ground control for
metal-nonmetal mines. The coal regulations, as shown in subpart C in Part 75 devoted to roof

15

In JWR, the Secretary urged an interpretation of section 75.202(a) under which a
fatality due to a roof fall in an underground coal mine would result in a finding of a per se
violation of that standard. 37 FMSHRC at 494-95. The Commission majority instead,
acknowledging strict liability under the Mine Act, chose to simply apply the specific terms of
section 75.202(a) to the facts. It ultimately held that, as to “the issue of whether the operator
failed to support the roof ‘to protect persons from hazards related to falls,’” a miner was found
. . . lying fatally injured beneath a large roof fall. Accordingly, the
only conclusion to be reached is that the roof was not supported to
protect the miner from a roof fall. . . . [T]he Mine Act is a strict
liability statute, and this fatality resulting from a fall of roof
material where persons work or travel unquestionably
demonstrates a violation of section 75.202(a). The roof fall . . .
amply demonstrates that the roof was not supported in a manner to
protect him from hazards related to falls.
Id. at 496. The miner had entered the area despite a large roof fall having occurred nearby. Id.
at 494.

42 FMSHRC Page 532

control, include specific requirements for detailed roof control plans. See generally 30 C.F.R.
Subpart C.16
In contrast, the underground metal-nonmetal regulations impose no specific roof control
parameters, and that is for good reason. See generally 30 C.F.R. Part 57. Metal-nonmetal
operators deal with diverse conditions, such as varied rock types and material structures, and
they have many different ways to handle those types of conditions. In short, these are sitespecific regulations. This inherent difference in the nature of metal-nonmetal mining conditions
mandates that metal-nonmetal operators must have flexibility to deal with the conditions as they
see fit, at the immediate site, on a case-by-case basis.
Similar to the Judge, Commissioner Jordan interprets the standards at issue largely
without addressing the exact terms of the standards and the differences between the regulatory
contexts of coal and metal-nonmetal mines. Instead, she too relies on JWR (as does
Commissioner Traynor), along with other cases in which, based on the application of the facts to
the simple terms of different regulatory standards, violations of those standards were found. See
slip op. at 25-30, 39. Like JWR, their cited cases provide little to no guidance for how the more
complex standards at issue here are to be interpreted and applied, and do not stand for the
proposition that strict liability under the Mine Act can be substituted for determining whether a
violation was established.17
In addition, Commissioner Jordan would go so far as to read the legislative history of the
Mine Act as sufficient authority, by itself, for the Commission to rewrite by interpretation any
metal-nonmetal standard so that it is functionally equivalent to a coal standard. See slip op. at
27-28 (quoting S. Rep. No. 95-181, at 12-13 (1977), Mine Act Legis. Hist. at 600-01). We
decline to do so. In a 16-month period, approximately ten years after the passage of the Mine
Act, MSHA issued revised ground control regulations for both coal and metal-nonmetal contexts.
Despite the legislative history’s belief in the “essential[ity] of a common regulatory program for
all operators,” MSHA nevertheless adopted the significantly different ground control standards
set forth above. Compare Safety Standards for Ground Conrol at Metal and Non-Metal Mines,
16

This distinction flows from the language and structure of the Act itself. Coal mining
roof and rib control requirements are addressed directly in section 302 of the statute, 30 U.S.C. §
862, along with the rest of Title III that imposed interim safety standards on the coal mining
industry. See 30 U.S.C. § 861, enacted Dec. 30, 1969, Pub. L. No. 91-173, § 301, 83 Stat. 765;
amended Nov. 9, 1977, Pub. L. No. 95-164, § 203, 91 Stat 1317. By contrast, metal-nonmetal
ground control is not explicitly in the Act.
17

See Stillwater, 142 F.3d at 1183-84 (finding load of ore that operator permitted to flow
in chute exceeded design capacity of bolts on chute gate shown by failure of gate, and thus
operator violated general safety regulation prohibiting use of equipment beyond its design
capacity); Clintwood Elkhorn, 35 FMSHRC at 370 (finding that truck leaving the road violated
standard requiring full control of equipment while it is in motion); Nally & Hamilton, 36
FMSHRC at 1648-51 (after interpreting key term “required” in context of standard imposing
obligation that seat belt be worn, finding violation solely based on equipment operator’s failure
to wear seat belt).

42 FMSHRC Page 533

51 Fed. Reg. 36,192 (Oct. 8, 1986); Safety Standards for Roof, Face and Rib Support [in
Underground Coal Mines], 53 Fed. Reg. 2343 (Jan. 27, 1988). It is not the role of the
Commission, through case law, to attempt to satisfy legislative history while implying that the
Secretary himself has clearly ignored that history in carrying out his standard-setting function
under section 101 of the Mine Act, 30 U.S.C. § 811.18
3.

The Reasonably Prudent Person Test Applies to the Standards Here.
a.

The Standards’ Broad Terms Require That the Commission’s
Reasonably Prudent Person Test Be Applied Here.

Turning to the terms of the standards that the Judge omitted, it is significant that section
57.3360 begins by stating that “[g]round support shall be used where ground conditions, or
mining experience in similar ground conditions in the mine, indicate that it is necessary.”
30 C.F.R. § 57.3360 (emphases added). The terms “experience,” “similar,” “indicate,” and
“necessary” are clearly indicative of a “judgment call” on when and what ground control is
needed, based on all the relevant ground conditions in the mine. The actions required by section
57.3360 – choice of ground support under the first sentence of the standard, and the resulting
design, installation and maintenance of that support under the second sentence – thus rest upon
the experience of the operator in the particular mining conditions to indicate appropriate ground
control measures. Because the regulation explicitly directs the mine operator to base its
judgment upon experience in similar ground conditions and knowledge of the ground conditions,
determining whether this standard was violated clearly negates a strict liability application and
calls for application of the Commission’s reasonably prudent person test. See BHP Minerals
Int’l Inc., 18 FMSHRC 1342, 1345 (Aug. 1996) (recognizing that factors bearing upon the
application of the reasonably prudent person standard include accepted safety standards and
circumstances at the operator’s mine).19
Separately, even when we find the actions of the operator would violate a standard,
orders have nonetheless been vacated when the reasonably prudent operator did not have fair
notice of a requirement through the wording of the standard. We apply the “reasonably prudent
person” test in deciding whether an operator had fair notice. See, e.g., Hecla Ltd., 38 FMSHRC
2117, 2125 (Aug. 2016) (“[W]e hold that a reasonably prudent person familiar with the mining
industry would not have known that the examination and testing requirement in section 57.3401
might demand a geomechanical or engineering analysis. [Although] we consider the Secretary’s
interpretation to be a permissible one . . . it would not be an obvious reading of the standard to a
18

We further note that, in contrast, in Nally & Hamilton, the case cited by our colleague
in support of her argument for a harmonious interpretation of similar MSHA safety standards,
the standard at issue, 30 C.F.R. § 77.1710(i), was promulgated prior to the passage of the Mine
Act.
19
Contrary to Commissioner Traynor’s arguments (slip op. at 42 n.15, 44), our reliance
on the terms of the standard in our analysis, such as the term “experience,” does not inject
“negligence” concepts into this case. It is the key terms of the standard that dictate whether the
reasonably prudent person test applies, and we cannot ignore such terms.

42 FMSHRC Page 534

person familiar with the mining industry.”). The reason is simple – the constitutional principles
of due process and fair notice apply prior to a finding of a violation that results in a civil penalty.
Here, for example, the operator could not have had “fair notice” of a supposed obligation
to install the type and extent of roof support measures that could have prevented the magnitude
of roof failure that occurred in this situation. The evidence demonstrates, unequivocally, that the
operator’s prior years of mining experience in similar ground conditions in the same and other
mines did not indicate that it was necessary. To the contrary, the experience indicated that it was
not necessary. See Consol Buchanan Mining Co. v. Sec’y of Labor, 841 F.3d 642, 650 (4th Cir.
2016) (agreeing with the Commission and other federal circuits that MSHA regulations
permitting a reasonably prudent person standard provides sufficient notice to satisfy due process
and supports potential sanctions).20
This case illustrates the importance of the language of section 57.3360. Here, the
operator had long operated six mines in the Trend, the host rock being dolomitic limestone,
which is very high in strength and stability. There was no evidence of any prior roof fall even
vaguely approaching the calamitous nature of the fall that occurred in this case.21 MSHA
inspected the area just hours before the fall and did not see or note any ground condition giving
rise to fear of any roof fall, let alone one of catastrophic proportions. Although there was post
hoc speculation about breakage along the ribs by one MSHA witness based upon post-accident
views, the evidence does not establish the existence of any ground conditions that could have
foreshadowed the massive fall that occurred.
Under Commissioner Traynor’s interpretation of section 57.3360, an operator is strictly
liable for any failure of ground in a part of a mine regardless of where the operator has decided
that some measure of ground control is necessary, on the rationale that such failure means the
operator has violated one or more of the design, installation, or maintenance terms of the second
sentence. Thus, in any metal-nonmetal mine where an operator has recognized the necessity for
ground control in a specific location, our dissenting colleagues would, in essence, read section
57.3360 identically to how section 75.202(a) applies in coal mines. Aside from being an
erroneous comparison, such an approach would obviously ignore the many cases requiring fair
notice of the obligations of a standard and a level of clairvoyance far removed from the terms of
the standard.
In light of the terms of the first sentence of the standard and as the standard has been
interpreted by the Secretary, we do not agree that an operator’s liability under the second
20

Commissioner Traynor, again, misses the point by his comment that our finding here
is “directly contradicted by counsel for Doe Run.” Slip op. at 37, n.6. We agree with counsel for
Doe Run that “ground support is necessary.” It is a matter of where that ground support is used
as necessary.
21

There was limited testimony that some unidentified person may have heard of a roof
fall of undescribed dimensions in some unidentified part of the mine; however, we find it
implausible that there could have been a previous fall, in this mine, approaching this magnitude
with no witness able to testify to it in any detail.

42 FMSHRC Page 535

sentence of section 57.3360 can or should be expanded by such an interpretative approach and
default to strict liability. It would, in essence, render irrelevant the operator’s compliance with
the obligations the first sentence of the standard imposes.
The other regulation at issue, section 57.3201, is a classically general standard. As with
section 57.3360, the standard’s language is broadly-worded, stating that “[s]caling shall be
performed from a location which will not expose persons to injury from falling material or other
protection from falling material shall be provided.” 30 C.F.R. § 57.3201 (emphases added).
The key words here are “location” and the phrase “other protection.” It is important that the
standard permits alternative means of compliance, i.e., the operator may ensure scaling is done
from a location that does not expose miners to hazards or it may provide protection to them.
Additionally, as with section 75.3360 again, and reading it in pari materia with that more
general control standard – as we should, because they both appear in Subpart B of MSHA’s Part
57 regulations addressing ground control – section 57.3201 does not require operators to foresee
and provide protection against a wholly unexpected and unprecedented collapse of an enormous
section of stable, hardened limestone. There are no details in the standard as to where that
“location” ought to be, and there are no details as to what “other protection” ought to be applied
here. Thus, as with section 57.3360, judgment calls are required to be made by the operator,
based on its experience with ground conditions in the mine, with respect to both the “location”
from which scaling is performed and the type of “protection . . . provided.”
That is understandable because section 57.3201 applies to a wide variety of
circumstances. Metal-nonmetal mines involve diverse ground conditions in a variety of unique
mining environments that call for numerous scaling procedures. MSHA openly acknowledged in
its final rule promulgating section 57.3201 that, in metal-nonmetal mines, the “[c]ontrol of
ground is made uniquely difficult because of the variety of conditions encountered and the
changing nature of the forces affecting ground stability at any given operation.” 51 Fed. Reg.
at 36,192.
This is a different context than underground coal mine operations, where mine plans and
roof conditions, albeit varying, are often very similar within a given type of underground mine,
and have been subject to more stringent and uniform regulation from the Mine Act’s inception.
Section 57.3201, on the other hand, must account for the broad variety of materials extracted,
the diversity of mining types and geographic areas represented, and the multiple methods of
scaling possible, depending on the type of mine and environment.22 Various conditions in a
mine affect scaling and the type of scaling utilized.23 Each one of these diverse factors impacts
what equates to a safe “location” for performing scaling.24
22

These include, but are not limited to, ground hand-scaling, rock pile scaling,
high-boom hand-scaling, mechanical scaling, front-end loader scaling, bolter scaling, and jumbo
drill scaling.
23

These include, but are not limited to, host rock stability, mineralization, layered back,
thick shale seams, brecciated ground, sandstone, existence or non-existence of ground support,
water penetration, active faults, and mud seams.

42 FMSHRC Page 536

As such, the standard, like section 57.3360, requires the application of the “reasonably
prudent person” test. If the operator, informed of the requirements of those regulations with
ascertainable certainty, failed to act with respect to either as a reasonably prudent person, then a
violation occurred. On the other hand, if the operator acted with reasonable prudence, there can
be no violation.
Our dissenting colleague, Commissioner Traynor, would affirm the Judge’s findings of
violations here, citing unassailable “plain meanings” to the standards at issue, and that thus the
reasonably prudent person test cannot be used. Slip op. at 36-44. However, he himself
disregards the plain language of section 57.3201, which provides that, as an alternative to scaling
from a location which will not expose persons to injury from falling material, “other protection
against falling material shall be provided.” 30 C.F.R. § 57.3201. Here, the operator used both –
a belt-and-suspenders approach. It positioned the miner beneath supported roof, where even the
inspector testified it would not have been a violation absent a roof fall, and used a specialized
piece of equipment featuring a long boom to permit the miner to remain under protected roof
while scaling from within a strong, reinforced cab. Clearly, therefore, the operator used other
protection as required. The key point is that the standard requires the operator to use its
experience and judgment in providing alternative fall protection that a reasonably prudent
operator would provide under the mining conditions.
b.

Application of the Reasonably Prudent Person Test to the Two MetalNonmetal Ground Control Standards is Amply Supported by
Established Commission Precedent.

Applying the reasonably prudent person test to determine whether the alleged violations
of sections 57.3360 and 57.3201 occurred is supported by no less than four Commission cases.
Nevertheless, the Judge rejected applying the test in favor of interpreting the standards solely in
light of an interpretation of a coal mine ground control standard. See 40 FMSHRC at 1209. In
so doing the Judge failed to follow Commission precedent in recognizing and according
significance to the difference between regulations under Part 57 and Part 75, as noted earlier.
We have consistently recognized this distinction when interpreting the metal-nonmetal standards.
In Asarco, Inc., 14 FMSHRC 941, 942-43, 952 (June 1992), all four metal-nonmetal
ground control violations cited were in connection with a fatality resulting from a roof fall
24

Again, our dissenting colleagues would read the standard in question as requiring
much less in the way of evidence, and affirm the Judge’s analysis that the facts here establish a
per se violation of section 57.3201. They would find the scaler’s location under the roof fall
entirely dispositive on the question of whether the standard was violated, regardless of how
objectively reasonable that location might be at the time given the operator’s ground control
experience in the mine. Slip op. at 30-31, 43-47. Similarly, they would ignore that the operator
provided “other protection” in the form of a reinforced cab thereby clearly complying with the
obligations of the standard. As discussed infra, Commission precedent in interpreting
predecessor and similar metal-nonmetal ground control standards does not support such an
interpretation, neither with respect to section 57.3360 nor with regard to section 57.3201.

42 FMSHRC Page 537

which, similar to the case at bar, was considered to have been “unpredictable.” In determining
whether the Secretary had established violations of both metal-nonmetal ground control
standards at issue, the Commission employed the reasonably prudent person test. See id. at 94750 (reversing finding of violation of 30 C.F.R. § 57.3401), 952 (in reversing finding of violation
of 30 C.F.R. § 57.3200, rejecting “[t]he Secretary[’s] premis[ing] her case on the assumption that
the rock that fell had been loose and could have been detected by proper testing,” because “[a]s
we have concluded, a reasonably prudent person familiar with the mining industry would not
have recognized that” the testing measure employed did not fulfill the requirements of section
57.3401).
In Asarco, the Secretary, like the Judge and our dissenting colleagues in this case, relied
on the fact of the accident to establish that the operator per se violated one of the standards in
question: section 57.3200. 14 FMSHRC at 950-51; see also 30 C.F.R. § 57.3200 (providing in
pertinent part that “[g]round conditions that create a hazard to persons shall be taken down or
supported before other work or travel is permitted in the affected area.”) (emphasis added). The
Commission expressly rejected that idea. Instead, we interpreted and applied the standard, cast
in the foregoing broad, judgment-call terms, to conclude that “[t]he fact that there was a ground
fall is not by itself sufficient to sustain a violation.” Asarco, 14 FMSHRC at 951 (emphasis
added).
Rather, the Commission held that the hazardous ground must be “detectable before,” not
just “after” the accident, and determined that, through an application of the “reasonably prudent”
miner test, that the operator’s pre-fall detection efforts were reasonable under the circumstances.
Id. at 951-52. We further note that, in addition to the Commission in Asarco expressly rejecting
the premise upon which the Judge here based his findings of violations, the similarity in the
language used to circumscribe metal-nonmetal operators’ ground control obligations in sections
57.3201, 57.3360 and section 57.3200 at issue in Asarco is much greater than the similarity in
language between section 75.202(a) and sections 57.3201 and 57.3360 that the Judge found to
“essentially identical.” See 40 FMSHRC at 1209.
The Commission in Asarco viewed its interpretation of the metal-nonmetal ground
control standard at issue to be compelled by its earlier decision in Amax. See Asarco, 14
FMSHRC at 952-53 (citing Amax Chemical Company, 8 FMSHRC 1146, 1149 (August 1986).
In Amax, the Commission had also explicitly rejected a similar attempt by the Secretary to
establish a per se test for violations of 30 C.F.R. § 57.3-22 (1984), a predecessor standard to 30
C.F.R. § 57.3401. Particularly emphasizing that the mine at issue was a “potash mine,” the
Commission in Amax specifically noted that:
. . . [u]nlike the regulatory scheme that obtains with respect to
underground coal mines, approved roof control plans are not
required in underground metal-nonmetal mining operations.
Rather, “[g]round support shall be used if the operating experience
of the mine, or any particular area of the mine, indicates that it is
required.” (30 C.F.R. § 57.3020 (1985) (formally numbered as 30
C.F.R. § 57.3-20 (1984)).
8 FMSHRC at 1149 (citing White Pine Copper Div., 5 FMSHRC 825, 835-37 (May 1983)).

42 FMSHRC Page 538

Amax’s citation to White Pine is particularly significant. In White Pine, we concluded
that the terms of 30 C.F.R. § 57.3-20, the predecessor to 30 C.F.R. § 57.3360, required the
Commission to evaluate the current conditions as well as the operating experience of the mine.
Similar to what is now section 57.3360, section 57.3-20 stated that “[g]round support shall be
used if the operating experience of the mine . . . indicates that it is required.” 30 C.F.R.
§ 57.3-20 (1982); 5 FMSHRC at 825 (emphasis added).
We did so after finding that “experience” includes “practical wisdom” and “broadly
encompasses all relevant facts tending to show the condition of the mine roof in question and
whether, in light of the roof condition, roof support is necessary.” 5 FMSHRC at 836 & n.23.
We ultimately held that the requisite determination under the standard
takes into account the operating history of the mine, (i.e., its past
mining practice) geological conditions, scientific test or monitoring
data and any other relevant facts tending to show the condition of
the mine roof in question and whether in light of those factors roof
support is required in order to protect the miners from potential
roof fall.
Id. at 838. In other words, the Commission interpreted the standard according to the “reasonably
prudent person” test.25
Lastly, the Commission’s decision in Canon Coal Co., 9 FMSHRC 667 (Apr. 1987),
although it involved a former coal mine ground control standard, is instructive with regard to the
circumstances in which the reasonably prudent person standard applies to ground control
standards like the ones at issue here, particularly section 57.3360. Former 30 C.F. R. § 75.200,
the predecessor to what is now 30 C.F. R. § 75.202(a), provided in pertinent part:
Each operator shall undertake to carry out on a continuing basis a
program to improve the roof control system of each coal mine and
the means and measures to accomplish such system. The roof and
ribs of all active underground roadways, travelways, and working

25

Unlike Commissioner Traynor, we put no stock in the fact that, in some of the older
cases, the Commission did not specifically state that it was applying the reasonably prudent
person test. See slip op. at 41. The Commission had already started interpreting broad standards
using such an approach before it first stated the specific “reasonably prudent person”
terminology in Alabama By-Products, 4 FMSHRC 2128, 2129 (Dec. 1982). See, e.g., Lone Star
Indus., Inc., 3 FMSHRC 2526, 2530 (Nov. 1981) (“[s]ection 56.9-41 is the kind of standard
made simple and brief in order to be broadly adaptable to myriad circumstances. The relevant
variables affecting safe position are numerous, may differ from plant to plant, and may change
from day to day in any particular operation.”).

42 FMSHRC Page 539

places shall be supported or otherwise controlled adequately to
protect persons from falls of the roof or ribs.
30 C.F. R. § 75.200 (1984); 9 FMSHRC at 667 n.1. Thus, a continually developing groundcontrol program was required on a mine-specific basis, analogous to the requirement of the first
sentence of section 57.3360. In Canon Coal, a case in which a roof fall resulted in a fatality, the
Commission, faced with an allegation that a violation of former section 75.200 had occurred,
did not hesitate to apply the reasonably prudent person test, even in light of the language in the
second sentence of the standard that it emphasized. See 9 FMSHRC at 667-68 & n.1.
Of course, as we have seen, former section 75.200’s successor standard, section
75.202(a), no longer includes that first sentence. Accordingly, we view the Judge here as having
erred when he treated the Commission majority’s finding in JWR with regard to the newer,
different coal mine ground control standard as having overruled the Commission’s application of
the reasonably prudent person test in Canon Coal (see 40 FMSHRC at 1207-09),26 as that was a
case in which a ground control standard written in much broader terms was at issue.
Based upon the foregoing established case law and principles, we hold that the
“reasonably prudent person” test applies to the alleged violations of section 57.3360 and section
57.3201 here. The Commission has consistently applied this test for nearly four decades.
White Pine and Canon Coal establish beyond peradventure that section 57.3360 is to be
interpreted and applied as a “reasonably prudent person standard.” Likewise, and in accord with
our decisions interpreting ground control standards in the metal-nonmetal context, the
determinations under section 57.3201 of whether the scaling “location” was proper or, in the
alternative, that “protection” was “provided,” can only be made under the “reasonably prudent
person” test.
C.

Application of the Reasonably Prudent Person Test
1.

The Record Compels the Conclusion that Ground Support at the Accident
Location was Properly “Designed, Installed and Maintained” Based on the
“Ground Conditions” Known to Doe Run Prior to the Ground Fall and its
Mining Experience in “Similar Ground Conditions.”

With respect to the section 57.3360 violation, the Secretary urged that the Judge be given
the opportunity to apply the reasonably prudent person test in the first instance after having
originally rejected it (S. Br. at 24-26). We now examine the record to determine whether there is
any need to do so, given the Secretary’s burden of proof on the question. With regard to that
burden, we consider it significant that, in sua sponte rejecting the test in this case, the Judge
concluded that “[s]uffice it to say that given the plethora of questions raised and unresolved,
26

The Judge appears to have been strongly influenced by the claim in the concurrence in
JWR that the majority opinion effectively overruled Canon Coal. See 40 FMSHRC at 1207
(citing 37 FMSHRC at 498). We need only observe that Commissioners Nakamura and Althen,
who comprised the majority in JWR, certainly knew how to overrule Canon Coal if they wished
to do so, and chose not to overrule that case. See 37 FMSHRC at 496 n.7.

42 FMSHRC Page 540

a prudent person test would have made the Secretary’s case as to the fact of violation much more
problematic.” 40 FMSHRC at 1209.
The Secretary argued below and on appeal that the operator should have known from
conditions evident before the accident that additional ground control measures were necessary.
He asserts that the operator should have drilled test holes to determine if there were voids above
the roof. He also asserts that the operator should have known of shaley conditions, and that these
conditions required the use of resin bolts instead of the Split Set bolts.
In his decision, the Judge rejected those arguments in addressing the S&S issue (which he
reached after finding a violation of section 57.3360). Substantial evidence supports the Judge’s
conclusions on those issues. His conclusions, and the evidence upon which they rest, compel an
overall finding of no violation. See Sims Crane, 41 FMSHRC at 399-400.
As recognized in the Judge’s analysis deleting the S&S designations (40 FMSHRC at
1165, 1210-1214), the record contains abundant evidence, including testimony from the
Secretary’s own witnesses, establishing that nothing with respect to the ground conditions or
ground support in the area of the accident put Doe Run on notice that any form of additional
support was needed.27
Prior to January 21, 2015, the mine had never experienced any unplanned ground falls
where Split Set roof bolts failed in ground conditions similar to those in the area of the accident.
Likewise, Doe Run had used Split Set roof bolts for decades to support brecciated ground.
Those bolts were effective without a history of failure. There is no evidence that the use of resin
bolts instead of Split Set bolts would have made any difference.
Moreover, the opinion of every witness who worked at the location of the accident prior
to the January 21, 2015 ground fall was that the ground conditions and ground support in the
area, including the conditions in the fall cavity, were typical and good. This includes the
Secretary’s own witness, Inspector Kennedy, who conducted an inspection of the mine eight
hours before the roof fell.28 Kennedy’s testimony and the other evidence – all of which the
Judge credited in his S&S analysis – demonstrate that there was nothing that should have put the
27

Notwithstanding Commissioner Traynor’s argument to the contrary (slip op. at 37
n.7), our discussion of the record evidence on the “judgment calls” and decisions made by Doe
Run based on its experience and past practice does not convert our analysis of what a reasonably
prudent miner would have “objectively” done into a “subjective” analysis.
28

Kennedy testified that he did not notice anything unusual on the face and did not
observe any “change” that would have indicated the existence of adverse ground conditions.
Tr. 104-05. The pillars appeared to be sized adequately with nothing out of the ordinary.
Likewise, the widths of the drifts and crosscuts were normal. In fact, Kennedy wrote “no loose
noted” and “ok” in his General Field Notes with respect to the RC3PO stope. Tr. 101;
DR Ex. AA, at 3. Kennedy had not noticed any abnormal noises such as popping or cracking.
He testified that he had observed nothing abnormal that would cause him concern about
hazardous ground conditions.

42 FMSHRC Page 541

operator on notice that the ground support or ground conditions in the area were insufficient or
hazardous.
The Secretary’s evidence fails to detract from this conclusion. Despite Vadnal’s post-hoc
testimony that he thought “shaley conditions” existed prior to the roof fall, the Judge found that
Kennedy’s testimony contradicted Vadnal’s opinion and diminished its probative weight.
The Judge also took into account that Vadnal had never visited the mine prior to the accident,
and had not personally observed the area before the roof fell. Vadnal was merely assuming that
the changes he had observed in the fall cavity area were observable prior to the accident.
Furthermore, Van Dorn conceded that his reason for concluding that test holes had not
been drilled was based on a single statement by one driller, Sam McCabe. However, McCabe
had also made a conflicting statement saying that he had previously drilled a test hole.
Tr. 386-89. Van Dorn failed to elicit any other statements that test holes had not been drilled.
Moreover, despite the Secretary’s argument that the operator had created an unsafe work
environment by using bonuses to reward productivity for roof bolters, the Judge found that the
Secretary failed to establish that the bolters had performed their duties in an unduly speedy
manner. 40 FMSHRC at 1213. Finally, the fact that there was no place on the mine’s work area
inspection cards to record when test holes were drilled raises the inference that the operator
could have drilled test holes without noting them. The Secretary has failed to prove otherwise or
bring forth any other evidence to show that the operator was on notice of insufficient ground
control.
In summary, we conclude that, after applying the reasonably prudent person standard to
the facts the Judge found, substantial evidence does not support a finding of a violation of
section 57.3360. Accordingly, we vacate that citation.
2.

The Record Establishes That Under the Reasonably Prudent Person Test
Doe Run Did Not Violate 30 C.F.R. § 57.3201.

As shown in the Judge’s factual findings regarding whether this violation was S&S, the
record contains abundant evidence regarding Hoodenpyle’s “location.” The scaler’s position 60
feet from the face, under bolted roof, with a reinforced cab did not “contribute[] to the reasonable
likelihood of an injurious roof fall onto Hoodenpyle.” Id. at 1212. Applying the “reasonably
prudent person” test, we vacate the citation alleging that Hoodenpyle performed the scaling at an
improper location without protection from falling material.
The Judge found that routine practice had demonstrated that Hoodenpyle’s position in the
cab was a safe location. He found that there was no prior indication of any imminent roof
failure, that there was no prior indication of any unsafe location for this scaling process, and that
there was no prior indication of any other locations the operator should have picked. Again, we
reject the notion (see slip op. at 44-45) that any discussion of the record evidence on the safe past
practices that led Hoodenpyle to make the decisions he did thereby converts the analysis of what
a reasonably prudent miner would have “objectively” done into a “subjective” analysis.

42 FMSHRC Page 542

Specifically, Hoodenpyle positioned his scaler where his ROPS/FOPS operator’s
compartment was approximately 60 feet from the face and directly underneath bolted ground.
Both Inspectors Kennedy and Van Dorn conceded that they had seen mechanical scalers operate
in this position before, and that doing so was not a violation. Indeed, Kennedy, who had four
years of underground experience at the mine prior to joining MSHA, testified that he had
observed mechanical scalers operate multiple times and that such positioning was normal.
Likewise, Van Dorn testified that he had seen mechanical scalers operate where the cab of the
machine was underneath the last row of bolts, and that he had never issued a citation for such an
occurrence before. Significantly, Van Dorn testified that it is not even a violation for a
mechanical scaler to be underneath 100% unbolted ground. Tr. 391.
Prior to January 21, 2015, the operator had never experienced an incident where a miner
was injured as a result of rock falling on the operator’s compartment in a mechanical scaler.
Based on the “normal” location of Hoodenpyle’s scaler, as well as the lack of prior similar
incidents and citations, a reasonably prudent person would have believed that Hoodenpyle’s
location for performing scaling would have protected him from the hazard of falling material.
Moreover, prior to January 21, 2015, the mine had never experienced any unplanned
ground falls where Split Set roof bolts failed in ground conditions similar to those in the area of
the collapse. Likewise, Split Set roof bolts have been used for decades to support brecciated
ground at Doe Run, and have proven to be effective without a history of failure. The unanimous
opinion of every witness who worked in the fall area prior to the roof fall was that the ground
conditions and ground support were typical and good. There had never been any instance of
injury to any mechanical scaler operator at the mine due to being crushed by a rock or because
rock fell on the operator’s compartment. In short, based on both the ground conditions as well as
the methods of ground control utilized at the mine, a reasonably prudent person would not have
recognized the hazard of falling material at Hoodenpyle’s scaling location.
The standard also requires a finding of no violation here because it offers alternative
means of compliance. The operator did “provide . . . protection” by the use of specialized
equipment, including a reinforced cab and an extended boom to keep the miner far from the area
being scaled, and by bolting the area above the scaler cab – which is not required.29 Interpreting
the standard in this way encourages the adoption of specialized safety equipment and practices.
As stated above, there are no details in section 57.3201 as to what “other protection” ought to be
applied here. Thus, another judgment call by the operator was required here.
Furthermore, as recognized by the Judge in his S&S analysis, the safety features
equipped in the mechanical scaler, e.g., the stable chassis that did not require stabilizers or
outriggers, the optimized line of sight to the scaling area improving visibility, the telescopic
29

We reject the Secretary’s contention that the operator forfeited this argument by
failing to raise it before the Judge below. S. Br. at 8 n.3 (citing 30 U.S.C. § 823(d)(2)(A)(iii); 29
C.F.R. § 2700.70(d); Black Beauty Coal Co., 37 FMSHRC 687, 694–95 (Apr. 2015). Doe Run
explicitly raised this argument before the Judge on pages 59-60 of its post-hearing brief. DR
Post-Hg. Br. at 59-60.

42 FMSHRC Page 543

boom, and the ROPS/FOPS protection, demonstrate that a reasonably prudent person would have
believed that the scaler offered “protection from falling material” on the day of the accident.
30 C.F.R. § 57.3201.30 The fact is that the operator did everything a reasonable operator would
have done both in terms of location and in providing other fall protection, and nothing would
have been cited as a violation but for the unforeseeable roof fall.
III.
Conclusion
For the reasons stated above, we reverse and vacate the Judge’s findings of violations of
the ground support standard in 30 C.F.R. § 57.3360 and the scaling standard in 30 C.F.R.
§ 57.3201.31

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

/s/ Michael G. Young
Michael G. Young, Commissioner

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

30

Moreover, the Secretary failed to produce any definitive evidence that the canopy or
cab of the scaler was not approved by MSHA or used without the proper tags.
31

Consequently, the Judge’s negligence findings are vacated as well, and we need not
reach the Secretary’s arguments regarding S&S and negligence.

42 FMSHRC Page 544

Commissioner Jordan, dissenting:
Roof falls have historically been a major cause of injuries and fatalities in our nation’s
mines. This case involves a mining accident during which 175 tons of rock collapsed onto a
mechanical scaler which miner John Hoodenpyle was operating.1 He did not survive. The
Judge concluded that Doe Run violated the two mandatory safety standards designed to protect
miners from such tragedies.2 I would affirm this ruling.
The Judge, however, erred by failing to conduct separate analyses as to whether each
violation was significant and substantial (“S&S”) and in ascertaining the level of negligence for
each violation. He also incorrectly ruled that the operator’s negligence was low without
supporting analysis. Consequently, I would remand the case on these issues.
I.
The Judge Correctly Determined that the Fatal Roof Fall established Per Se Violations of
the Cited Standards.
A.

The Judge Applied the Per Se Analysis the Commission Utilized for Underground
Coal Mines.

In Jim Walter Resources, Inc., 37 FMSHRC 493 (Mar. 2015), (“JWR”), the Commission
considered the validity of a citation issued in the wake of a roof fall fatality in an underground
coal mine. The cited standard, in pertinent part, required that “[t]he roof, face and ribs of areas
where persons work or travel shall be supported or otherwise controlled to protect persons from
hazards related to falls of the roof. . . .” 30 C.F.R. § 75.202. When the inspector arrived on the
scene, the miner was lying fatally injured beneath a large roof fall. In affirming the citation, the
1

Scaling involves knocking loose rock off of the walls and roof of a mine. Tr. 429-30.

2

Doe Run was charged with a violation of the following standards:
30 C.F.R. § 57.3360:
Ground support shall be used where ground conditions, or mining
experience in similar ground conditions in the mine, indicate that it
is necessary. When ground support is necessary, the support
system shall be designed, installed, and maintained to control the
ground in places where persons work or travel in performing their
assigned tasks.
30 C.F.R. § 57.3201: “Scaling shall be performed from a location which will not
expose persons to injury from falling material, or other protection from falling
material shall be provided.

Both violations were designated as significant and substantial.

42 FMSHRC Page 545

Commission observed: “the only conclusion to be reached is that the roof was not supported to
protect the miner from a roof fall.” 37 FMSHRC at 496.
However, the Judge in JWR had ruled that the Secretary had failed to prove a violation.
According to the Judge, in order to uphold the citation, the Secretary had to establish the
existence of objective signs that were present prior to the roof fall, which would have alerted a
reasonably prudent person that additional roof support was necessary. Id. at 494. In reaching
this conclusion, the Judge relied on the Commission decisions in Canon Coal Co., 9 FMSHRC
667 (Apr. 1987) (Canon), and Harlan Cumberland Coal Co., 20 FMSHRC 1275 (Dec. 1998),
(Harlan), which had applied this “reasonably prudent person” standard to factual scenarios
involving a roof fall (Canon) and unsafe roof conditions without a fall (Harlan).
In overturning the Judge, the Commission observed that “the Mine Act is a strict liability
statute and this fatality resulting from a fall of roof material where persons work or travel
unquestionably demonstrates a violation of section 75.202(a).” 37 FMSHRC at 496. The
majority acknowledged the similar factual context between the case before it and the decision in
Canon, but specifically declined to follow that decision. In his concurring opinion,
Commissioner Cohen agreed that “[a] roof that falls and kills a miner was obviously not
supported ‘to protect persons from hazards related to falls of the roof’ as required by the safety
standard.” Id. at 498. He wrote separately to express his view that the disposition in JWR
effectively overruled the Commission’s decision in Canon.
B.

JWR is Consistent with Commission and Court of Appeals Precedent as Applied to
Both Coal and Metal/Non-Metal Mines.

The Commission’s decision in JWR is the most recent in a long line of precedents
holding operators liable when they have failed to achieve the result required by an MSHA safety
standard, regardless of the effort the operator may have made to comply with the standard, or the
operator’s ignorance regarding the existence of the violation. A few examples of these cases
demonstrate that here, to determine liability, one must simply ask: “was the ground controlled”
or “was the miner exposed to injury from falling material”?
Clintwood Elkhorn Mining Co. Inc., 35 FMSHRC 365 (Feb. 2013), involved a miner who
was unable to stop his truck while it rolled down a haul road, crashed through a berm and flipped
onto its passenger side. The operator was charged with violating the regulation requiring
equipment operators to “have full control of the equipment while it is in motion.” Id. at 367,
(citing 30 C.F.R. § 77.1607). In upholding the citation, the Commission stated:
[t]he Secretary must only demonstrate, by a preponderance of the
evidence, that the operator failed to maintain full control of a piece
of equipment while it was in motion. Nothing in the language of
the standard requires the Secretary to prove a causal or
contributing factor for the loss of control . . . . We conclude that

42 FMSHRC Page 546

the judge made a finding that is both necessary and sufficient to
affirm the citation: the driver lost control of his truck.
Id. at 370.
In Musser Engineering Inc., and PBS Coals, Inc., 32 FMSHRC 1257, 1271-72 (Oct.
2010), a serious inundation led to an operator being charged with using an inaccurate mine map.3
The operator argued that the map was prepared based on the best information available to it, and
that it was not possible to ascertain the boundaries of the adjacent abandoned mine. The
Commission nevertheless concluded that because the standard requires that the operator maintain
an “accurate and up-to-date map,” it followed that if the mine map failed to meet these
requirements, the operator violated the standard, regardless of whether the operator did
everything possible to locate an accurate historical map of adjacent mine workings. Id. at 1272.
In addition, when Spartan Mining was charged with failing to prevent damage to trailing
cables by mobile equipment,4 the Commission upheld the citation because: “It is undisputed that
the trailing cable was run over and damaged by the continuous mining machine . . . .” Spartan
Mining Co., Inc., 30 FMSHRC 699, 706 (Aug. 2008). It explained why Spartan’s arguments
were unavailing:
We are not persuaded by Spartan’s defenses that no violation
should be found because this was the first time the operator had
run over a cable and that Spartan had a policy in place to protect
cables. The Mine Act is a strict liability statute, such that an
operator will be held liable if a violation of a mandatory standard
occurs regardless of the level of fault.
Id at 706.
In El Paso Rock Quarries, Inc., 3 FMSHRC 35 (Jan. 1981), the pertinent safety standard
required an audible back-up alarm when the equipment operator had an obstructed view to the
rear. The Judge vacated the citation because the Secretary failed to establish that the operator
knew or should have known that the alarm was inoperative. The Commission reversed,
reasoning that under the Mine Act, an operator may be held liable for a violation of a safety
standard regardless of fault. Id. at 38.
3

The standard at issue, 30 C.F.R. § 75.1200, states:
The operator of a coal mine shall have in a fireproof repository
located in an area on the surface of the mine chosen by the mine
operator to minimize the danger of destruction by fire or other
hazard, an accurate and up-to-date map of such mine drawn on
scale.

4

The operator was charged with violating 30 C.F.R. § 75.606, which requires that
“[t]railing cables shall be adequately protected to prevent damage by mobile equipment.”

42 FMSHRC Page 547

The Courts of Appeals have upheld the Commission’s strict liability analysis. For
instance, in Asarco, Inc.-Northwestern Mining Dept. v. FMSHRC, 868 F.2d 1195 (10th Cir.
1989), a miner in an underground metal mine sustained a broken foot when struck by a falling
rock while he was drilling. It was uncontested that he had not complied with the standard
requiring miners to examine and test the back, face, and ribs of their working places. However,
the operator argued that it had taken all actions necessary to meet the duty of care mandated by
the statute and that the miner had engaged in “unpredictable and idiosyncratic misconduct” and
violated his supervisor’s specific instructions. Id. at 1196. The Court nevertheless upheld the
Commission’s ruling that once it was determined that the miner employed by Asarco had
violated the safety standard, the operator was subject to a civil penalty, and the fact that
supervising employees were not at fault was not a defense to the citation. Id. at 1197.
In Stillwater Mining Co., 142 F.3d 1179 (9th Cir. 1998) (“Stillwater”), the relevant
standard required that “[m]achinery, equipment, and tools shall not be used beyond the design
capacity intended by the manufacturer, where such use may create a hazard to persons.” 30
C.F.R. § 57.14205. After ore being loaded from a chute into a waiting railcar jammed in the
chute, the gate assembly detached, permitting the ore and muck to flow from the chute, killing a
miner. Agreeing with the Judge below, the Ninth Circuit held that “[w]hatever load was applied
to the bolts . . . had to have exceeded the design capacity of the bolts; otherwise the chute would
not have failed.” 142 F.3d at 1185. In rejecting the operator’s argument that it had no reason to
believe the design capacity was ever exceeded, the Court emphasized that “knowledge and
culpability . . . are not relevant to the determination of whether there was a violation. As we
have observed, the [Mine Act] imposes ‘a kind of strict liability on employers to ensure worker
safety.’” Id. at 1184 (citations omitted).
Here, in spite of the roof fall, my colleagues decline to find violations. They find it
persuasive that the operator had long operated mines in the same ore deposit, that there was no
evidence of any prior roof fall, that MSHA had inspected the area shortly before the fall and did
not note any problematic ground conditions, and that the operator had never experienced an
incident where a miner was injured as a result of rock falling on the operator’s compartment in a
mechanical scaler. Slip op. at 19-25. But the Stillwater court rejected similar defenses.
Stillwater pointed out that the chute had been used for over five years without incident during
which time more than 200,000 tons had flowed through the gate, the chute assembly was
regularly inspected by workers and MSHA, and no changes or adverse conditions had occurred.
142 F.3d at 1183. The Ninth Circuit discounted such reasoning, adopting instead a per se
approach: the chute failed, and thus the design capacity of the bolts must have been exceeded.
C.

The Majority Erroneously Applied A Reasonably Prudent Person Standard to
Determine Liability.

In contrast to the strict liability standard applied to the coal mine roof fall fatality in JWR,
the majority contends that the distinctive nature of metal mines necessitates a reasonably prudent
person test. Slip op. at 15-16. My colleagues’ conclusion, however, rests on a faulty analysis.
In fact, their approach flies in the face of the intent expressed by the drafters of the Mine Act that
miners in metal/non-metal mines enjoy safety protections equal to those which had been set forth

42 FMSHRC Page 548

in the Coal Act. The Senate Report made clear the desire to rectify the distinction which existed
between the two groups of miners:
[T]he Metal Act does not provide effective protection for miners
from health and safety hazards and enforcement sanctions under
that Act are insufficient to encourage compliance by operators . . . .
The Committee believes that it is essential that there be a common
regulatory program for all operators and equal protection under the
law for all miners. Thus a principal feature of the bill is the
establishment of a single mine safety and health law applicable to
the entire mining industry.
S. Rep. No. 95-181, at 12-13, (1977), reprinted in Senate Subcomm. on Labor, Comm. on
Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 600-01
(1978) (“Leg. Hist.”) (emphasis added).
The Commission cited this legislative history when it rejected a construction of the seat
belt requirement pertaining to coal miners that would have afforded them less protection than
that afforded to metal/non-metal miners. The case arose when an inspector observed a coal
miner who was not wearing a seat belt. The relevant standard provided that miners were
required to wear seatbelts in certain vehicles where conditions pose a danger of overturning. The
operator argued that liability should not be based solely on the miner’s failure to wear the seat
belt. Relying on its training regimen, and its enforcement practices, the operator maintained that
the miners were in fact “required to wear” seatbelts, as the language of the standard mandated.
Nally & Hamilton Enterprises, 38 FMSHRC 1644 (July 2016).
Rejecting that argument, the Commission held that the only sensible reading of the
regulation was that it required miners to use seatbelts. The failure to wear the seatbelt would be
sufficient to impose liability. In reaching that conclusion, the Commission noted the
corresponding regulation applicable to metal/non-metal miners, which explicitly required that:
“Seat belts shall be provided and worn in haulage trucks.” 30 C.F.R § 57.14131(a). Finding “no
logical reason why coal mines would be subject to a regulation designed to be less protective . . .
than the regulation governing other mines” and that it “would make little sense for MSHA or its
predecessor agency to have intended such a result,” Nally & Hamilton, 38 FMSHRC at 1650, the
Commission concluded that the coal mine standard should be construed “in a manner that
provides equivalent and harmonized safety protection across different types of mining ventures.”
Id. at 1649.
In this case, however, my colleagues have construed the relevant roof control standard in
a manner that affords metal/non-metal miners with less protection than that afforded to miners
working in underground coal mines. A mine inspector arriving upon the scene of a roof fall
fatality in an underground coal mine can issue a citation for a violation of the standard requiring
the roof to be supported, without the need to determine that operator negligence was a
contributing factor to the roof fall. JWR, 37 FMSHRC at 496. An inspector arriving upon the
scene of a roof fall fatality in a metal/non-metal mine would, according to my colleagues, have to
determine whether there were objective signs present prior to the fall that would have alerted a

42 FMSHRC Page 549

reasonably prudent operator to install additional roof support. In other words, the inspector
would have to demonstrate the operator was negligent before the inspector could issue a citation
to the metal/non-metal operator. There is no logical reason for this distinction. It is contrary to
Congressional intent and inconsistent with Commission and Court precedent. Moreover, as I
discuss in greater detail, infra slip op. at 29-31, the language of the comparative regulations do
not support such a result.
Although my colleagues acknowledge that the Mine Act encompasses strict liability
parameters as a general rule, they claim that here they must apply a “reasonably prudent person”
test to ensure that principles of fair notice to the operator are upheld. I agree that this test is
appropriate when a standard requires no clear-cut outcome and fails to alert an operator to what it
must do to avoid a breach of a safety rule. Thus, I have no quarrel with the majority’s recitation
of the black-letter law principle that “laws [must] give the person of ordinary intelligence a
reasonable opportunity to know what is prohibited, so that he may act accordingly.” Slip op. at
6-7, citing Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972).
However, there is no notice issue in this case, and thus no need to use the test here. The
requirements of the two standards are clear, and individuals of “common intelligence” have no
need to guess as to their meaning. See Alabama By-Products, 4 FMSHRC at 2129. To comply,
an operator must (1) control the ground in places where persons work or travel, and (2) ensure
that scaling is performed where falling material will not hurt miners or provide protection from
such material. The obligations are clear.
Nonetheless, focusing only on the first sentence of section 57.3360, the majority tries to
shoehorn it into the class of “incomplete, vague, indefinite or uncertain” standards that the
majority states are appropriate for use of the reasonably prudent person test. Slip op. at 13-17.
Whether or not the use of that test might be appropriate in cases where this sentence of the
standard is at issue, the test is clearly not appropriate here. Here, it is undisputed that ground
support was necessary.5 Moreover, as discussed with greater specificity, infra slip op. at 31-32,
section 57.3201 also states straightforward requirements that do not implicate fair notice
concerns. 6
D.

Doe Run Violated the Ground Control Standard.

The Judge here properly concluded that the standards at issue “are essentially identical to
§ 75.202(a) in that the plain meaning of both standards is there should be adequate ground
control to protect miners from falling materials.” 40 FMSHRC 1165, 1209 (July 2018) (ALJ).
The majority criticizes him for relying upon the JWR decision because in doing so, the Judge
5

Counsel for Doe Run conceded that experience had indicated that roof bolting was
necessary. Oral Arg. Tr. At 13 (“Doe Run made the decision that ground support is necessary.”).
And roof bolt ground support was installed in a portion of the fall area.
6

As Commissioner Traynor correctly points out, slip op. at 40-41, the majority’s
reliance on Amax Chemical Co., 8 FMSHRC 1146 (Aug. 1986) and on Asarco, Inc., 14
FMSHRC 941 (June 1992) is misplaced.

42 FMSHRC Page 550

disregarded the “substantial distinction between the regulation of roof control for coal mines and
the regulation of ground control for metal-nonmetal mines.” Slip op. at 12. According to my
colleagues, the language of the standards “is strikingly different” and they consider there to be
“virtually no commonality between the short and direct obligation under section 75.202 and the
broader language of the subject regulations.” Slip op. at 11. I disagree.
Regarding section 57.3360, although it requires the metal/non-metal operator to make an
initial judgment call as to whether ground control is needed, once the operator determines that
such support is necessary (as the operator did here), there is no discretion as to how adequate that
support must be. Indeed, as I will illustrate, the regulations are quite parallel on this point: the
support must prevent the roof from falling on miners. This obligation remains the same, no
matter whether the miner is employed in an underground coal mine or an underground
metal/non-metal mine. A careful analysis of the language of the relevant regulations confirms
the correctness of this assertion.
The relevant standard for coal mines is located at section 75.202(a) and provides in
pertinent part: “[T]he roof, face and ribs of areas where persons work or travel shall be
supported or otherwise controlled to protect persons from hazards related to falls of the roof
. . . .” 30 C.F.R. § 75.202(a) (emphasis added).
The corresponding standard for metal/non-metal mines states the following: “When
ground support is necessary, the support system shall be designed, installed and maintained to
control the ground in places where persons work or travel in performing their assigned tasks.”
30 C.F.R. § 57.3360 (emphasis added).
Both regulations require the operator to achieve the same result and each regulation
provides the operator with ascertainable certainty as to what that result should be: the operator is
required to support the roof so that it does not fall and injure a miner. A roof fall fatality
unquestionably demonstrates a failure to achieve the required result. A failure to achieve the
regulation’s required result equates to a violation of either standard. This is the approach that the
Commission took in JWR, and this is the approach that the Judge correctly applied here.
Consequently, I would affirm the finding of a violation.7
E.

Doe Run Violated the Scaling Standard.

As previously noted, section 57.3201 provides that: “[s]caling shall be performed from a
location which will not expose persons to injury from falling material, or other protection from
falling material shall be provided.” 30 C.F.R. § 57.3201.

7

Even were I to adopt the majority’s reasonably prudent person analysis, I agree with
Commissioner Traynor, slip op. at 42, n.14, that one would be hard-pressed to conclude that the
record compels the conclusion that no violation occurred, the standard that must be met in order
to reverse the Judge. Am. Mine Servs., Inc., 15 FMSHRC 1830, 1834 (Sept. 1993) (remand not
necessary when record supports no other conclusion).

42 FMSHRC Page 551

The requirements of this standard are clear: (1) scaling work shall be performed outside
the zone of danger of any potential fall of ground or (2) adequate protection shall be provided.
It is beyond dispute that the miner was scaling from a location where he was exposed to injury.
Similarly, it is tragically incontrovertible that the structures on Mr. Hoodenpyle’s scaler were not
adequate to protect him from falling material caused by failure of his employer’s ground control
system. See, e.g., Sunbelt Rentals, Inc., 38 FMSHRC 1619, 1627 (July 2016) (holding that an
examination of working places, to comply with the examination standard at issue, must be
“adequate”).
The majority’s effort to characterize this outcome-based standard as lacking sufficient
detail and requiring a judgment call by an operator, slip op. at 13, 15, 23, are unavailing. The
standard clearly protects against one hazard—injury from falling material. It contains no vague
phrases requiring subjective judgment. An operator can easily discern its legal requirement:
miners who are scaling must not be exposed to injury from falling material. Hoodenpyle’s death
from the roof fall constitutes the requisite evidence that he had failed to scale from a safe
location that would prevent him from being exposed to falling material. It also demonstrates that
other adequate protection from the roof fall was not provided.
My colleagues claim that section 57.3201 “does not require operators to foresee and
provide protection against a wholly unexpected and unprecedented collapse of an enormous
section of stable, hardened limestone.” Slip op. at 15. I believe, however, that the Mine Act and
MSHA safety standards are designed to protect miners from exactly this type of tragic
occurrence. Accordingly, I would affirm the Judge’s finding of liability.
II.
The Judge should have Conducted Separate S&S and Negligence Analyses for the Two
Violations.
The Judge deleted the S&S designations associated with both citations, but failed to
conduct separate analyses. In one sentence and without explanation (other than a brief footnote
addressing the scaling standard) the Judge also reduced the negligence associated with both
citations to low. This combined analysis constituted legal error. The Judge was obligated to
separately evaluate whether each violation was S&S, and the negligence level of each.
Regarding S&S, instead of conducting separate S&S analyses, the Judge framed the issue
as whether both violations were S&S, and analyzed the same evidence in the same way for both
violations. 40 FMSHRC at 1210-14. But whether each violation was S&S is an issue for which
different evidence is relevant, or for which similar evidence may be of varying significance. For
example, the S&S analysis of the ground support violation considers the likelihood that
inadequate or absent ground support will result in the hazard of a roof fall, and whether such a
roof fall is reasonably likely to result in reasonably serious injury. In contrast, the S&S analysis
of the scaling violation considers the likelihood that, in the event of falling material, the position
of the mechanical scaler will result in the hazard of that material falling on miners (such as the
miner operating the scaler). The position of a scaling machine presumably makes a roof fall no
more and no less likely to occur; the standard focuses on whether any material that falls will fall
on miners. The Judge’s S&S analysis, however, considered the likelihood that both violations

42 FMSHRC Page 552

(undifferentiated) would result in “a rock fall that would have injured [Mr.] Hoodenpyle in his
scaler cab.” Id. at 1211. That was error.
The Judge’s negligence determination was also inadequate, and not only because it was
exceedingly terse. As with his S&S discussion, the Judge combined his negligence analyses,
failing to distinguish between the two violations. When the Secretary alleges violations of
separate standards, it is well-established that Judges must conduct separate negligence and
unwarrantable failure analyses for each violation, even if the violations are “factually related.”
Sierra Rock Products, Inc., 37 FMSHRC 1, 3-4, 6 (Jan. 2015); Consolidation Coal Co., 23
FMSHRC 588, 597 (June 2001).
Because the separate standards impose different obligations, two negligence analyses are
required. Sierra Rock Products, 37 FMSHRC at 6. For example, an operator may show low
negligence on a ground control violation in diligently working to control the ground, but high
negligence on a scaling violation by permitting miners to scale under unsupported roof or in
adverse conditions. Or an operator may show high negligence by failing to implement basic
ground control practices, while diligently prohibiting miners from scaling in adverse conditions.
The evidence of negligence associated with one violation is not necessarily probative of, and is
certainly not dispositive of, the negligence associated with another. See id. at 4 (“The relative
significance of a fact or circumstance may change when different violative conduct is at issue”).
III.
Conclusion
I would affirm the Judge’s ruling that Doe Run violated the two standards, and I would
remand the case for a determination regarding whether the violations were S&S, for a ruling on
the level of negligence for each violation, and for the assessment of penalties.

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

42 FMSHRC Page 553

Commissioner Traynor, dissenting:
The Doe Run Company operated the Fletcher Mine, a lead and zinc mine in Missouri.
Unlike coal mine operators, who are required to obtain MSHA approval of comprehensive minespecific plans for controlling the roof in their mines, the Doe Run Company mined without an
MSHA approved roof control plan. MSHA’s regulations gave Doe Run wide discretion to
determine where in the mine ground support systems were necessary, along with full
responsibility to ensure such systems are “designed, installed, and maintained to control the
ground in places where persons work or travel in performing their assigned tasks.” 30 C.F.R.
§ 57.3360. This is an especially serious responsibility, given “[f]all of ground has historically
been a leading cause of injuries and deaths in metal and nonmetal mines.” Safety Standards for
Ground Control at Metal and Nonmetal Mines, 51 Fed. Reg. 36,192, 36,192 (Oct. 8, 1986).
Unfortunately, on January 21, 2015, miner John Hoodenpyle was operating a mechanical scaler
when a massive slab of rock fell from the roof of the Fletcher mine and crushed him to death.
Following the accident, MSHA issued two citations that were adjudicated in the decision
on review. The Judge below appropriately concluded that because the Mine Act imposes strict
liability, the tragic failure of Doe Run’s ground control systems to “control the ground” where
Hoodenpyle was working established a violation of section 57.3360. The Judge also determined
the accident that killed Hoodenpyle established a violation of the regulation requiring that
“[s]caling shall be performed from a location which will not expose persons to injury from
falling material.” 30 C.F.R. § 57.3201.
The Judge’s decision finding Doe Run violated both standards flows from our
foundational precedents firmly establishing that Mine Act regulations are promulgated and
enforced in a strict liability framework. The majority attempts an end-run around this authority
by misapplying the “reasonably prudent person” test in order to introduce operator fault and
foreknowledge as additional elements of proof necessary to establish the violations.1 But in our
strict liability framework, operator fault, foreknowledge and other inquiries into negligence are
irrelevant to the question of whether a violation occurred and are only to be considered when
determining what penalty, if any, shall be assessed for the violation. It is from this fundamental
error – and particularly the harm it will do to enforcement of ground control obligations in metal
and nonmetal mines – that I very emphatically dissent.

1

The “reasonably prudent person” doctrine is traditionally used by the Commission and
originated as a tool to determine whether a safety standard provides the objectively reasonable
mine operator notice of the prohibition or requirement of a safety standard to the extent required
by due process. Ideal Cement Co., 12 FMSRHC 2409, 2416 (Nov. 1990) (“whether a reasonably
prudent person familiar with the mining injury and the protective purposes of the standard would
have recognized the specific prohibition or requirement of the standard.”). The test is rooted in
the constitutional right to due process in connection with the deprivation of property. See The
American Coal Co., 38 FMSHRC 2062, 2112 (Aug. 2016) (Comm’r Althen, dissenting
(explaining “[i]t is elementary that due process requires that a party must receive fair notice
before being deprived of property.”)).

42 FMSHRC Page 554

However, I find error in other parts of the Judge’s analysis. For instance, the Judge
inappropriately comingled his analyses of whether the discrete violations were “significant and
substantial” (“S&S”). Furthermore, the Judge erred in summarily concluding that the operator
demonstrated a low level of negligence without providing a supporting rationale. While I would
affirm that the standards at issue were violated, these errors would require remand.
I.
Mine Act Safety Standards Only Function Properly and As Intended If Operators
Are Held Strictly Liable Without Regard for Fault or Foreknowledge.
It is well established that mine operators are universally liable for all violations that occur
at their mine without regard to fault or foreknowledge of the violative conditions. 30 U.S.C.
§ 820(a); see also Wake Stone Corp., 36 FMSHRC 825, 827 (Apr. 2014) (“Imposing strict
liability under the Mine Act is not optional — it is mandatory.”); see, e.g., Ames Constr., Inc.,
33 FMSHRC 1607, 1611 (July 2011), aff’d, 676 F.3d 1109 (D.C. Cir. 2012) (holding that the
Mine Act imposes strict liability for violations which occur at a mine without regard to an
operator’s fault); Asarco, Inc., NW Mining Dept. v. FMSHRC, 868 F.2d 1195, 1197 (10th Cir.
1989) (“the plain meaning of . . . section 110(a) is that when a violation of a mandatory safety
standard occurs in a mine, the operator is automatically assessed a civil penalty”); Allied
Products Co. v. FMSHRC, 666 F.2d 890, 893-94 (5th Cir. 1982) (“it is a common regulatory
practice to impose a kind of strict liability on [a mining] employer as an incentive for him to take
all practicable measures to ensure workers’ safety, the idea being that the employer is in a better
position to make specific rules and to enforce them than the agency is”); Sewell Coal Co. v.
FMSHRC, 686 F.2d 1066, 1071 (4th Cir. 1982) (affirming operator liability under the Mine Act
without regard to fault).
As part of a strict liability framework, every Mine Act regulation “imposes liability upon
an operator regardless of its knowledge of unsafe conditions. What the operator knew or should
have known is relevant, if at all, in determining the appropriate penalty, not in determining
whether a violation of the regulation occurred.” Peabody Coal Co., 1 FMSHRC 1494, 1495
(Oct. 1979); see also Nally & Hamilton Enter. Inc., 33 FMSHRC 1759, 1764 (Aug. 2011); Rock
of Ages Corp. v. Sec’y of Labor, 170 F.3d 148, 156 (2d Cir. 1999) (holding that Mine Act
regulation “imposes strict liability on mine operators . . . regardless of whether the operator has
knowledge” of hazard); Stillwater Mining Co. v. FMSHRC, 142 F.3d 1179, 1184 (9th Cir. 1998)
(“[k]nowledge and culpability, however, are not relevant to the determination of whether there
was a violation. As we have observed, the FMSHA imposes ‘a kind of strict liability on
employers to ensure worker safety’”) (citation omitted); Allied Products, 666 F.2d at 894 (“If the
act or its regulations are violated, it is irrelevant whose act precipitated the violation or whether
or not the violation was found to affect safety; the operator is liable.”). Following Congress,
courts have reinforced that we have consistently recognized “the inherent danger of mines, and
held any failure to comply with a regulation under the Act would result in a citation to the
operator . . . . [T]here are no exceptions for fault, only harsher penalties for willful violations.”
Miller Mining Co. v. FMSHRC, 713 F.2d 487, 491 (9th Cir. 1983) (citing Allied Products, 666
F.2d at 893–894).

42 FMSHRC Page 555

II.
Exempting the Standards at Issue From Strict Liability Enforcement Dangerously
Undermines Ground Control Regulation of Metal and Non-Metal Mines.
The majority’s refusal to apply the regulations at issue in a manner consistent with strict
liability dangerously undermines regulation of ground control in metal and non-metal mines. In
order to fully appreciate this danger, it is necessary to understand how the regulatory framework
requiring ground control in metal and non-metal mines is significantly different than the planbased framework that governs roof control in coal mines.
Underground coal mine operators are required to mine in accordance with a roof control
plan approved by the local MSHA district manager – “suitable” to the prevailing geological
conditions and mining systems – and abide by generally applicable roof support standards in Part
75. See 30 U.S.C. § 862(a). These comprehensive and specially-tailored coal mine roof control
plans mandate minimum specifications for ground support systems, e.g., bolt length, bolting
patterns. “[A] violation of the requirements in the plan constitutes a violation of the Act.”
UMWA Int’l Union v. Dole, 870 F.2d 662, 667 & n.7 (D.C. Cir. 1989) (“[t]he requirements of
these plans are enforceable as if they were mandatory standards”) (quoting S. Rep. No. 95-181,
at 25 (1977) reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative
History of the Federal Mine Safety and Health Act of 1977, at 613 (1978)); see e.g.,
Consolidation Coal Co., 39 FMSHRC 1737 (Sept. 2017).
In contrast, “the Mine Act imposes no similar obligation [to mine in accordance with a
mandatory mine-specific roof control plan] upon underground metal and non-metal mines.”
See Hecla Ltd., 38 FMSHRC 2117, 2125 (Aug. 2016). There are no comprehensive plan
requirements or regulations governing roof control in metal and non-metal mines. Instead, metal
and nonmetal operators have been accorded considerable discretion to design, install, and
maintain support systems provided that the operator performs its obligation to control the
ground.2 See 51 Fed. Reg. at 36,195 (“[Section 57.3360] does not specify the type of ground
support system to be used, only that it control the ground.”); id. at 36,192 (“The standards are
performance-oriented, but are sufficiently specific to provide the mine operator with the
necessary guidance.”) (emphases added).
Metal and non-metal mine operators are not subject to the detailed mine-specific ground
control plans the Secretary requires for underground coal mines. Instead, Mine Act regulations
give them wide discretion and ultimate responsibility as to where and how they control the
2

While these regulatory schemes are significantly different owing to historic differences
between the original the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et
seq. (1976) (amended 1977) (“Coal Act”) and the Federal Metal and Nonmetallic Mine Safety
Act of 1966, 30 U.S.C. § 721 et seq. (1976) (repealed 1977)(“Metal Act”), operators of all
underground mines share a common obligation to control the ground in places where miners
work or travel. 30 C.F.R. §§ 57.3360, 75.202(a); see Nally & Hamilton Enter., 38 FMSHRC
1644, 1650 (Jul. 2016) (“The Senate Report on the Mine Act notes that the Coal Act was more
comprehensive in scope and reach than the Metal Act. ”).

42 FMSHRC Page 556

ground.3 The majority’s failure to interpret the standards at issue consistent with the strict
liability framework in which they were promulgated relieves metal and non-metal operators of
this responsibility, and an incentive, for ensuring their miners are only working in areas where
the operator can control the ground. Judge Richard Posner described this incentive in an oftcited strict liability case:
By making the actor strictly liable – by denying him in other words
an excuse based on his inability to avoid accidents by being more
careful – we give him an incentive, missing in a negligence
regime, to experiment with methods of preventing accidents that
involve not greater exertions of care, assumed to be futile, but
instead relocating, changing, or reducing (perhaps to the vanishing
point) the activity giving rise to the accident.
Indiana Harbor Belt R.R. Co. v. Am. Cyanamid Co., 916 F.2d 1174, 1177 (7th Cir. 1990).
III.
The Plain Requirements of the Standards at Issue Were Violated.
The two safety standards at issue are plain. As discussed more fully below, the operator
violated both. Whether the operator – or the objective reasonably prudent miner – knew or could
have known of the ground control failure is totally irrelevant to our inquiry into whether the
regulations have been violated.4 In this case, these questions are only appropriate in the context
of the negligence inquiry involved in penalty assessment and review of the S&S designations.
A.

Section 57.3360 Plainly Requires That When Ground Support is Necessary Mine
Operators Must Provide Sufficient Support to Continuously Control the Ground in
Places Where Miners Work and Travel.

The safety standard at 30 C.F.R. § 57.3360 states that “[g]round support shall be used
where ground conditions, or mining experience in similar ground conditions in the mine, indicate
that it is necessary. When ground support is necessary, the support system shall be designed,
3

Doe Run’s unilaterally developed internal ground control policy provided loose
guidance to its miners rather than specifying, for example, when a tighter bolting pattern or
longer bolts would be required. DR Ex. F at 2 (“In general a 5 x 5 pattern is sufficient for
intersections, however some ground conditions may dictate a tighter spacing . . . [H]istoric
ground control difficulties may dictate the use of longer fixtures. Spot bolting or pattern bolting
may be necessary in areas where ground control problems or geologic structures dictate.”).
4

Here, there is no cause for the reasonably prudent person test. Due process is
unquestionably satisfied as all five Commissioners apparently agree that the meaning of
standards is plain. See slip op. at 16. And when the language in a regulation “is clear, it follows
that the standard provides fair notice . . . .” See Bluestone Coal Corp., 19 FMSHRC 1025, 1031
(June 1997).

42 FMSHRC Page 557

installed, and maintained to control the ground in places where persons work or travel in
performing their assigned tasks . . . .”
The language of the standard is clear. “Where the language of a regulatory provision is
clear, the terms of that provision must be enforced as they are written unless the regulator clearly
intended the words to have a different meaning or unless such meaning would lead to absurd
results.” Jim Walter Res., Inc., 28 FMSHRC 983, 987 (Dec. 2006) (citing Dyer v. United States,
832 F.2d 1062, 1066 (9th Cir. 1987).
The first sentence of the standard establishes a predicate – ground support shall be used
where conditions or experience indicate that it is necessary.5 The design of the standard accounts
for the variety of mining environments at issue in underground metal and nonmetal mines. For
instance, not all underground metal and nonmetal mines provide roof bolt ground support.
Tr. 391; e.g., White Pine Copper Div., Copper Range Co., 5 FMSHRC 825, 832-33 (May 1983).
It is undisputed that in this case ground support was necessary. Counsel for Doe Run conceded
that experience had indicated that roof bolting – a form of ground support – was necessary.
Oral Arg. Tr. 13 (“Doe Run made the decision that ground support is necessary.”).6 And roof
bolt ground support was installed in a portion of the fall area.
The second sentence of the standard plainly states that its requirements are conditioned
on whether the operator has determined that ground support is necessary.7 “When ground
support is necessary, the support system shall be designed, installed, and maintained to control
the ground in places where persons work or travel.” 30 C.F.R. § 57.3360 (emphasis added). The
requirements of the second sentence are thus triggered when the operator uses ground support.
5

The majority completely ignores the standard’s conditional language and the plain
requirements imposed in the second sentence in their purported plain meaning interpretation.
Accordingly, the majority’s interpretation is erroneous. See TRW Inc. v. Andrews, 534 U.S. 19,
31 (2001) (holding that a cardinal principle of interpretation is to give effect, if possible, to every
clause or word).
6

The majority finding that “experience indicated that [ground support] . . . was not
necessary” is thus directly contradicted by counsel for Doe Run. Slip op. at 14 (emphasis in
original).
7

The majority asserts that the question of whether ground support is necessary should be
resolved by the application of a subjective version of the reasonably prudent person test,
substituting its own interpretation of the regulation for that of the Secretary, who urges
consideration of multiple factors relating to ground conditions and mining experience referenced
in three of our prior decisions. S. Br. at 24-25. See also 51 Fed. Reg. at 36,195 (“Under the final
rule, ground conditions and mining experience are the criteria for determining if support is
required.”). Unlike the majority, I would accord due deference to the Secretary’s interpretation
were the necessity of ground control at issue in this case. But it is not. Here, we already have
the answer to this inquiry, as all parties agree that ground support was necessary and some
ground support was deployed in the area where the accident occurred.

42 FMSHRC Page 558

Each substantial term in the standard plainly states what an operator must do to comply in those
circumstances where ground support is necessary.
“[T]he Commission has consistently construed [the term] ‘maintain’ in relation to other
standards to require a continuing functioning condition.” Nally & Hamilton, 33 FMSHRC at
1763. In Nally & Hamilton, the Commission recited this history:
In Lopke Quarries, the Commission, in affirming the judge’s
finding of a violation, examined Webster’s definition of
“maintained” and determined that based on its plain meaning,
“the inclusion of the word ‘maintain’ in the standard . . .
incorporates an ongoing responsibility on the part of the operator
. . . .” 23 FMSHRC at 707-08. See also Alan Lee Good, 23
FMSHRC at 996-98 (affirming the judge’s finding that, because
the regulation required that braking systems on equipment be
“maintained in a functional condition,” and the operator conceded
that the parking brake was inoperative, the evidence established
that there was a violation of the cited standard); Peabody Coal Co.,
1 FMSHRC 1494, 1495 (Oct. 1979) (finding that a violation of
section 77.404(a) was established where the operator admitted the
presence of a hydraulic leak and, therefore, admitted that the
forklift was not maintained in “safe operating condition”); Jim
Walter Res., 19 FMSHRC at 1765-66 (affirming a judge’s finding
that a “monitor was not being ‘maintained’ in ‘proper operating
condition,”’ as required by 30 C.F.R. § 75.342 where the operator
intentionally routed air believed to contain methane on a path that
would prevent methane monitor detection).
Id. Thus, clearly the requirement that ground support be “maintained to control the ground in
places where people work or travel” requires that the ground is controlled in a continuing
functioning condition.8
The standard also requires that the support be “designed” and “installed” to control the
ground. The term “design” is defined in Webster’s Dictionary as “used as a basis for
anticipating practical problems and solving them at an engineering stage.” Webster’s Third
International Dictionary 612 (1986). The term “install” is defined as “to set-up for use or
service.” Id. at 1171. In this instance, the common dictionary definition of the terms is
consistent with surrounding language and purpose of the standard. See Akzo Nobel Salt, Inc.,
8

As Commissioner Jordan explains in her dissent, the requirement to “control” the
ground in places where persons work or travel is plain and presents no cause for application of a
reasonably prudent miner test. Slip op. at 28-30. It prompts but one question: was the ground
controlled? See, e.g., Clintwood Elkhorn Mining Co, 35 FMSHRC 365, 370 (Feb. 2013) (“‘It is
obvious that the driver here lost control of his truck . . . . Mine operators are strictly liable for
violations such as this’ . . . . This is where the analysis should have ended.”); see also Premier
Elkhorn Coal Co., 38 FMSHRC 1587, 1591-92 (July 2016) (same).

42 FMSHRC Page 559

21 FMSRHC 846, 852 (Aug. 1999) (“It is a cardinal principle of . . . regulatory interpretation
that words that are not technical in nature ‘are to be given their usual, natural, plain, ordinary,
and commonly understood meaning.”). Thus, the ordinary and uncomplicated meaning of these
terms cumulatively require that when ground support has been determined to be necessary, a
mine operator must provide sufficient support to continuously control the ground in places where
miners work and travel.9 Therefore, if the ground falls in an area where a miner works or travels,
the operator is strictly liable. This is true regardless of whether the operator could have foreseen
the fall, whether the operator’s or miners’ conduct contributed to the fall, or whether the fall
actually placed any person in danger.
This plain meaning interpretation is consistent with a similar safety standard applicable to
underground coal mines, 30 C.F.R. § 75.202(a) (“[t]he roof, face and ribs of areas where persons
work or travel shall be supported or otherwise controlled to protect persons from hazards related
to falls of the roof, face or ribs and coal or rock bursts.”). In Jim Walter Resources, Inc., 37
FMSHRC 493, 495 (Mar. 2015), the Commission held that “under the plain language of [section
75.202(a)] and the strict liability approach governing Mine Act violations, the Secretary . . . need
only show (1) that the roof fall occurred in an area where persons work or travel and (2) that the
roof was not supported to protect persons from hazards related to falls.”10 The majority attempts
to distinguish JWR on the ground that it involved an underground coal mine and the metal/nonmetal mine operators must have the “flexibility to deal with the conditions as they see fit.” Slip
op. at 12. But this wide flexibility only works to improve safety when it is exercised within a
regulatory framework that imposes strict liability on operators to create the “incentive, missing in
a negligence regime, to experiment with methods of preventing accidents that involve not greater
exertions of care, assumed to be futile, but instead relocating, changing, or reducing (perhaps to
the vanishing point) the activity giving rise to the accident.” Am. Cyanamid Co., 916 F.2d at
1177.
The majority misconstrues the Commission’s use of the “reasonably prudent person” test
in Asarco, Inc., 14 FMSHRC 941, 948 (June 1992). Slip op at 17-18. Asarco involved a roof
fall and two alleged violations of 30 C.F.R. § 57.3401 (“designated persons shall examine and,
9

Because the contested provisions of the standard are plain and clear, there is no due
process notice issue to address. The plain meaning of common ordinary usage language in the
standard’s language provides adequate notice to mine operators. See Dynamic Energy, Inc., 32
FMSHRC 1168, 1172 (Sept. 2010); Jim Walter, 28 FMSHRC at 988 n.6.
10

In JWR, the Commission acknowledged that its holding was inconsistent with the
interpretation articulated in Canon Coal. JWR, 37 FMSHRC at 496 n.7 (“we decline to follow
the Canon decision.”); cf. Canon Coal Co., 9 FMSHRC 667, 668 (Apr. 1987) (“the adequacy of
particular roof support or other control must be measured against the test of whether the support
or control is what a reasonably prudent person . . . would have provided in order to meet the
protection intended by the standard.”). Accordingly, Commissioners Althen’s and Nakamura’s
expressions of their hesitation to ignore Canon Coal in JWR are simply dicta. The only
principled manner in which to read JWR is that it established a new interpretation of section
75.202(a) – overturning Canon Coal. See JWR, 37 FMSHRC at 498 (Comm’r Cohen,
concurring).

42 FMSHRC Page 560

where applicable, test ground conditions in areas where work is to be performed . . . .”). The
Commission applied the “reasonably prudent person” doctrine to consider whether the operator
had notice that the standard at section 57.3401 prohibited exclusive reliance on its preferred
method of testing the roof. The test was appropriately used to confirm the regulated community
did not have constitutional notice of the requirements of the standard, not to interpret into those
requirements a defense against violations committed without fault or foreknowledge.
Asarco argued that it reasonably believed that using a jumbo drill to vibrate the roof
totest for loose ground satisfied the safety standard’s requirements. The Commission agreed,
concluding that the Secretary did not demonstrate that a “reasonably prudent person familiar
with the mining industry would have recognized that a jumbo drill could not be used effectively
to test for loose ground.” Asarco, 14 FMSHRC at 945-46, 949-50. Section 57.3401 neither
provided a methodology for testing nor had the Secretary provided any supplemental guidance in
his Program Policy Manual. Id. at 947. Furthermore, witnesses for the operator and the
Secretary testified that using a jumbo drill to vibrate the roof to test for loose ground was a
common practice in the industry. Id. at 948-49. Accordingly, the Commission concluded that
the Secretary’s regulation failed to provide Asarco with adequate notice. Id. at 949-50.11

11

Asarco also concerned two alleged violations of 30 C.F.R. § 57.3200 which provides
that “[g]round conditions that create a hazard to persons shall be taken down or supported before
other work or travel is permitted in the affected area.” (emphasis added). My colleagues in the
majority contend that they interpreted the standard under a reasonably prudent person test. Slip
op. at 17. This is incorrect. Instead, the Commission relied on the plain ordinary meaning of the
term “before” to hold that the Secretary must prove that there was “a reasonably detectable
hazard before the ground fall.” Asarco, 14 FMSHRC at 951 (emphasis in original). The
Commission concluded that the evidence the Secretary introduced of the roof conditions after the
occurrence of the roof fall was not substantial evidence to support the Judge’s finding of a
violation because the specific language of the safety standard requires evidence of a problem
before the fall. In fact, despite my colleague’s mischaracterization, slip op. at 17-18, the only
time the Commission referenced the “reasonably prudent person” test in discussing section
57.3200 was in reference to the prior finding that the mine operator did not have notice that a
jumbo drill did not comply with the testing requirements of section 57.3401.

42 FMSHRC Page 561

Section 57.3360 on the other hand is sufficiently specific to notify the operator of its
obligation: to control the ground in places where people work and travel. Accordingly, the issue
in the case at hand is fully distinguishable from the Commission’s consideration of what the
ambiguous term “test” in section 57.3401 requires.12
In addition, my colleagues inaccurately claim that Amax Chemical Co., 8 FMSHRC 1146
(Aug. 1986), supports their erroneous application of the reasonably prudent person test. Slip op.
at 18. Notably, Amax neither contains the phrase “reasonably prudent person” nor does it
concern an issue of regulatory interpretation. Rather, Amax concerns whether substantial
evidence supports the Judge’s finding of a violation of 30 C.F.R. § 57.3-22 (1984) (a now
defunct safety standard which required loose ground to be taken down or adequately supported).
The Commission concluded that substantial evidence supported the Judge’s determination.
However, the Commission wrote further to clarify that while ground that makes a “drummy”
sound when struck with a hammer suggests that the ground is loose, it does not establish that the
ground is loose per se. 8 FMSHRC at 1148-49. My colleagues in the majority extrapolate this
evidentiary ruling beyond all recognition.
The majority’s reliance on White Pine Copper Div., 5 FMSHRC at 825, is similarly
misplaced. Slip op. at 18-19. In fact, White Pine illustrates how far my colleagues have strayed
from Commission precedent. The case involved a prior roof control standard, 30 C.F.R. § 57.312

The majority reads the opinion in Asarco to imply the question of whether an operator
had notice sufficient to support imposition of a civil penalty consistent with constitutional due
process is controlling on the preliminary interpretive question of whether the operator violated
the regulation. This is error, as explained in a D.C. District Court opinion recounting the historic
development and application of the due process notice requirement in the regulatory context:
While it is clear that the notice requirement is not limited to the
criminal realm, it also has not been applied to limit agencies’
interpretations in all contexts. Nearly all of the cases applying the
“fair notice” doctrine concern an agency’s imposition of a penalty
against a private party and, moreover, formulate the doctrine in
terms of penalties.
Arkansas Dep’t of Human Servs. v. Sebelius, 818 F. Supp. 2d 107, 120–21 (D.D.C. 2011). Even
if in Asarco we had explicitly departed from traditional application of the due process inquiry,
that holding would have been superseded by numerous cases explicitly recognizing interpretation
of a regulation to determine whether it was violated is not contingent on the due process analysis
used to determine whether a civil penalty may be imposed. See, e.g., id.; Berwind Natural Res.
Corp., 21 FMSHRC 1284, 1328 (Dec. 1999) (“[A]n agency’s interpretation may be permissible
but nevertheless may fail to provide the notice required to support imposition of a civil
penalty.”); Consol Buchanan Mining Co., LLC v. Sec’y of Labor, 841 F.3d 642, 651 (4th Cir.
2016), as amended (Nov. 23, 2016) (“[Operator] had fair notice that the failure to replace
defective shutoff valves raised the possibility of sanctions, and MSHA is therefore not barred
from seeking civil penalties in connection with this violation.”).

42 FMSHRC Page 562

20 (1984), that required “[g]round support shall be used if the operating experience of the mine,
or any particular area of the mine, indicates that it is required.” 5 FMSHRC at 825.
My colleagues ignore that “[t]he only question before the Commission [in White Pine]
[was] whether the particular conditions of the cited area required roof support, not which type of
roof support.” Id. at 835, n.19. The Commission held that once the operator determines that
ground support is necessary in an area, the safety standard requires that the operator use
“sufficient” support to “protect[ ] miners against roof falls.” Id. at 837. In the case at hand,
because counsel for Doe Run conceded that ground support was necessary and Doe Run had
actually come to the same conclusion by installing ground support measures in the accident area,
the only question before us is whether that support was sufficient.13 My colleagues twist
themselves in analytical circles in an attempt to relieve the operator of the imposition of any
legal obligation of sufficiency.
Here, the Judge found that the occurrence of the roof fall – which crushed a miner to
death – violated Doe Run’s obligation to control the ground in a place where miners work or
travel. 40 FMSHRC 1165, 1209-1210 (July 2018) (ALJ). I affirm this conclusion.14 Whether or
not Doe Run demonstrated negligence in using a 5 x 5 split-set bolting pattern at the site of the
RC3PO northeast fall area, is the type of inquiry that is confined to the section 110(i) penalty
criteria.15
13

Like Doe Run’s counsel, my colleagues acknowledge Doe Run used ground support
measures at the location where the accident occurred, emphasizing “[t]hat is precisely what Doe
Run did here – apply ground support in the location where it was necessary.” Slip op. at 9
(emphasis in original). But the ground support Doe Run applied failed to control the ground
where it was applied.
14

Even if Mine Act regulations were not created in a strict liability framework – a notion
contrary to the plain text of the statute and decades of precedent – and I joined the majority in
applying a reasonably prudent person test to inject foreknowledge and negligence into the
analysis, I would not be able to conclude that the record compels the conclusion that no violation
occurred, the standard that must be met in order to reverse the Judge. See Am. Mine Servs., Inc.,
15 FMSHRC 1830, 1834 (Sept. 1993) (remand not necessary only when record supports no other
conclusion). For example, the Secretary argued that test holes should have been drilled in the
fall area. Vernon Roark, the roof bolter, testified that he had not been trained how to drill test
holes and did not drill test holes. Tr. 465-66, 473-74. A second roof bolter, Sam McCabe, told
Van Dorn that he did not drill test holes either. Tr. 386. The Secretary also presented evidence
regarding loose rock in the area and prior roof falls. Tr. 292-93; S. Br. at 26. The Judge made
no finding regarding the roof bolters’ failure to drill test holes.
15

My colleagues have injected the concept of negligence into the analysis of whether an
operator was strictly liable for a violation of a safety standard, demonstrating a fundamental
misunderstanding of how the Mine Act operates. It is well established that mine operators are to
abide by mandatory safety standards, and if the standard is violated the operator is liable,
regardless of foreknowledge, negligence or fault. 30 U.S.C. § 820(a); Peabody Coal Co.,
(continued…)

42 FMSHRC Page 563

B.

Section 57.3201 Plainly Requires that Scaling be Performed From a Location That
Does not Expose Miners to Injury From Falling Material.

The safety standard at section 57.3201 provides that “[s]caling shall be performed from a
location which will not expose persons to injury from falling material, or other protection from
falling material shall be provided.” 30 C.F.R. § 57.3201. The requirements of this standard are
clear – scaling work shall be performed outside the zone of danger of any potential fall of ground
or adequate protection shall be provided.16 “[A] ‘safe’ location is one which will not expose
persons to injury from falling material.” 51 Fed. Reg. at 36,194.
It is beyond dispute that Hoodenpyle was scaling from a location where he was exposed
to injury. Counsel for the Secretary has alleged that Doe Run violated the standard based on the
location of the scaler. S. Post-Hr’g Br. at 21. Doe Run vigorously contested this allegation
before the Judge below, but mounted no supported defense that it complied with the standard by
providing “other protection from falling material.” In any event, it is tragically incontrovertible
that the structures on Mr. Hoodenpyle’s scaler did not protect him from falling material caused

15

(…continued)

1 FMSHRC at 1495; Nally & Hamilton, 38 FMSHRC at 1651. Only when assessing a civil
penalty for the violation does the Judge consider if the operator was negligent in violating the
standard. See Nally & Hamilton, 38 FMSHRC at 1651 (citing Asarco, 868 F.2d at 1997) (“Of
course, the operator’s fault or lack of fault goes to the issue of negligence and, thus, is considered
in assessing a civil penalty.”); see also KenAmerican Res., Inc., 42 FMSHRC 1, 8 n.16 (Jan.
2020) (consideration as to whether the operator was negligent in violating the standard is
“appropriately confined to the penalty assessment for the violation.”). Notably, the Commission
has found a violation of a safety standard even when the operator was not negligent. Nally &
Hamilton, 38 FMSHRC at 1652 (affirming the Judge’s “no negligence” finding); see also 30
C.F.R. § 100.3(d) (the Secretary can issue a citation alleging “no negligence”). In the case at
hand, the Judge found that Doe Run demonstrated a low level of negligence. 40 FMSHRC at
1212.
16

The majority finds the Commission’s decision in Asarco controlling. Slip op. at 17.
However, in Asarco, the Commission determined that the standard was directed at ground
conditions as they appeared before a roof fall based on the inclusion of the term “before” in the
safety standard. See supra slip op. at 40, n.12. Thus, the language of the standard compels a
focus on the operator’s foreknowledge. Section 57.3201’s directives are distinct and do not
contain the term “before” or other similar language requiring an inquiry into foreknowledge or
any other aspect of a negligence inquiry. Accordingly, the attempted analogy falls flat.

42 FMSHRC Page 564

by failure of his employer’s ground control system.17 Thus, the fact of his injury alone, without
more, is sufficient to establish a violation of the regulation.
Despite appearing to find that the language of section 57.3201 is “plain” and therefore no
deference was owed the Secretary’s interpretation, the majority also holds that purported
ambiguities in the word “location” and the phrase “other protection” require use of the
“reasonably prudent person” test. Slip op. at 15-16, 21-22. If the words of the regulation are
plain, there is no cause for application of the reasonably prudent person test of whether the
objectively reasonable operator had notice of the requirements of the regulation. If the standard
contains ambiguities, of course we must consider whether the Secretary’s interpretation is
reasonable.18 My colleagues have instead chosen to interpret the terms themselves so as to open
the gates to a “reasonably prudent person” Trojan horse, concealing within it operator defenses –
lack of fault, foreseeability and foreknowledge – that do not belong in a strict liability analysis.
My colleagues in the majority note that routine practice had demonstrated that
Hoodenpyle’s position in the cab was a safe location. Slip op. at 22. But there is absolutely no
basis in the text of the regulation or our strict liability law to speculate about Hoodenpyle’s
subjective knowledge of the likelihood of a roof fall or the reasonableness of his choices or
conduct.19 Indeed, “the reasonably prudent person test contemplates an objective – not
17

I agree with Commissioner Jordan that the word “protection,” which is not at issue in
this case, does not introduce ambiguities requiring an exception to the principles of strict
liability. Slip op. at 32. See Spartan Mining Co., 30 FMSHRC 699, 706 (Aug. 2008) (“We are
not persuaded by Spartan’s defenses that no violation should be found because this was the first
time the operator had run over a cable and that Spartan had a policy in place to protect cables.
The Mine Act is a strict liability statute, such that an operator will be held liable if a violation of
a mandatory standard occurs regardless of the level of fault.”). The majority declines to apply a
strict liability interpretation of the standard, claiming it “requires the operator to use its
experience and judgment in providing alternative fall protection that a reasonably prudent
operator would provide under the mining conditions,” slip op. at 17, even though the plain
language of the standard reads, “protection from falling material shall be provided” and the facts
indicate Hoodenpyle was not protected from falling material.
18

The majority opinion does not address our duty to defer to the Secretary’s reasonable
interpretation of regulatory language. Do they find the terms of these regulatory standards plain?
If not, and they conclude the terms are ambiguous, where is their analyses of whether the
Secretary’s interpretations are “plainly erroneous or inconsistent with the regulation?” Kisor v.
Wilkie, 139 S. Ct. 2400, 2411 (2019). Where is any discussion of our duty of deference?
19

My colleagues flatly claim without elaboration that “any discussion of the record
evidence on the safe past practices that led Hoodenpyle to make the decisions he did” is an
objective and not subjective analysis. Slip op. at 22. This is patently incorrect. Establishing
what is “reasonable” by reference to an actual individual miner or operator’s prior behavior –
e.g., where they had located the scaler in the past without incident – rather than what the
hypothetical “reasonably prudent miner” would have done is unquestionably applying a
(continued…)

42 FMSHRC Page 565

subjective – analysis of all the surrounding circumstances, factors, and considerations bearing on
the inquiry in issue.” Canon Coal Co., 9 FMSHRC at 668; see also Lehigh Anthracite Coal, 40
FMSHRC 273, 282 (Apr. 2018); Stillwater, 142 F.3d at 1182 (the “appropriate test is not
whether the operator had explicit prior notice of a specific prohibition or requirement, but
whether a reasonably prudent person familiar with the mining industry and the protective
purposes of the standard would have recognized the specific prohibition or requirement of the
standard.”).
Inquiry into whether an individual operator or miner was aware of potentially violative
conditions is nothing more than an examination of whether that person was negligent. Yet the
majority uses just such an inquiry to reach the (counterfactual) conclusion that the violation must
be vacated because the scaler’s location did not contribute to the “reasonable likelihood of an
injurious roof fall onto Hoodenpyle.” Slip op. at 22. This distorted application of an altered
“reasonably prudent person test,” unsupported by any coherent discussion of our strict liability
precedents, is just a backdoor inquiry into the operator’s subjective knowledge of the violations,
their foreseeability and the operator’s degree of fault. It is being used not to faithfully interpret
and apply the text of the regulation, but rather to add “lack of knowledge, foreseeability or fault”
(negligence) as a new supra-textual defense available to any operator cited under what was
promulgated as a strict liability regulation.
Once a violation is established, the Judge considers the operator’s negligence only in
setting a penalty for the violation.20 30 U.S.C. § 820(i). “[A] finding on operator negligence is
19

(…continued)
subjective rather than objective test. This distortion of the test begs the question of
reasonableness, by improperly using Hoodenpyle and/or Doe Run’s prior conduct as a
benchmark of ”reasonable” conduct, rather than using the hypothetical objectively reasonable
person. This subjective analysis is inappropriate, even in the context of the appropriate
application of the reasonably prudent person test on the question of whether due process permits
a penalty (let alone the preliminary question of whether a strict liability interpretation of the
regulatory terms establishes a violation in the first place).
20

The D.C. Circuit recognized that the Mine Act separates analysis of liability from
negligence in Western Fuels-Utah, Inc. v. FMSHRC, 870 F.2d 711, 713 (D.C. Cir. 1989).
Section 104 of the Act imposes liability on an operator for violations of mandatory standards, id.
at 716 (“the statute necessarily implies that a violation can exist even without an act on the
operator’s part”), and a civil penalty is imposed based on whether or not the operator was
negligent, id. (drawing a distinction between “negligent violations and non-negligent
violations”). My colleagues cite Western Fuels-Utah in an effort to justify their improperly
injecting a reasonably prudent person theory of liability in lieu of strict liability, slip op. at 9,
when in fact the D.C. Circuit’s discussion of operator liability and negligence entirely undercuts
my colleagues’ approach. The majority confuses the concept of strict liability, a mandatory
aspect of our interpretation of the standards at issue here, with the separate concept of vicarious
liability for the acts of agents or supervisors, which is the primary issue addressed in Western
(continued…)

42 FMSHRC Page 566

only necessary when the Commission assesses a penalty.” Sunbelt Rentals, Inc., 42 FMSHRC
16, 40 (Jan. 2020) (Chair Rajkovich, concurring (citing 30 U.S.C. § 820(i))).
If this decision were remanded to the Judge for a reassessment of negligence, he may
reasonably conclude again that Doe Run demonstrated a low level of negligence or even that
Doe Run was not negligent in permitting the miner to scale at this location. To that end, MSHA
inspector Jeremy Kennedy conducted a routine inspection of this area the day before the accident
and reported that the roof appeared to be free of adverse conditions and the bolts flush to the
back. Similarly, Bob Ridings, a geologist employed by Doe Run, traveled in the area hours
before the ground fall and testified that the bolts “looked good.” Tr. 689. Tom Welch, a loader
operator, traveled in under the last row of bolts and testified that “everything looked fine.”
Tr. 519.
On the other hand, there is also evidence that suggests Doe Run was negligent in
permitting the miner to scale from the location where the accident occurred. He was seated
inside the cab of the scaler, approximately 60 feet from the face. Hoodenpyle’s scaler was
located at the outermost limits of Doe Run’s discretionary ground control policy. S. Ex. 7 at 1
(“[s]caling will begin 60’ back from the face”). He was seated under the last row of bolts.
Approximately 50 feet of unbolted ground was between that row of bolts and the face. S. Ex. 12
at 4-5. The diagram at Secretary’s Exhibit 12, at 5, depicts the mechanical scaler outstretched,
using the full 40 foot range of the boom to scale. S. Ex. 8 at 6. Most of the roof fall at issue
occurred in the unbolted area (75% of the ground fall) and the fall extended back, ripping the last
row of bolts out as well (25% of the ground fall).21
20

(…continued)

Fuels-Utah and most of the cases listed in the majority opinion’s footnote 14. Slip op. at 10.
My colleagues claim numerous controlling cases mandating strict liability interpretation
on the question of whether Mine Act standards are violated that are cited throughout this dissent
are not “relevant to the initial task of interpreting a Mine Act standard to determine an operator’s
obligations under it and whether a violation even occurred.” Slip op. at 10 (emphasis in
original). But strict liability is the only proper way to determine whether the terms of the
standards alone – ruling out questions of negligence, fault and foreseeability – establish a
violation.
21

As a corrective action, MSHA recommended new roof control procedures which
would limit the amount of unbolted ground between the last row of bolts and the face, to ensure a
safe location for scaling operations. 40 FMSRHC at 1175 (citing Tr. 203); Tr. 310. This new
policy also requires the uses of the stronger resin bolts within 30 feet of the face in areas of
disrupted bedding in breccia zones. S. Ex. 8 at 6. The Secretary believes that “limit[ing]
distances for unbolted areas will ensure a safe location for scaling operations.” Id. at 7. Under
the new procedures, in areas of disrupted bedding, a scaler could not be seated under the last row
of bolts, with approximately 50 feet of unbolted ground in front of him, as Hoodenpyle was in
this case.

42 FMSHRC Page 567

Doe Run was not drilling test holes to determine the conditions of the ground, in order to
determine whether it was appropriate to bolt in a tighter pattern or to switch to stronger resin
bolts. Tr. 294. In fact, Vernon Roark the roof bolter testified that he had not been trained on
how to use the equipment required to drill a test hole and accordingly, did not drill one to test the
ground.22 Tr. 465-66, 473-74.23 Furthermore, Doe Run management provided no mechanism for
miners to communicate the result of a test hole to management. Tr. 59, 184-85. There was even
testimony that other roof falls had occurred, but MSHA was not able to locate those areas upon
investigation. Tr. 292-93. In the absence of adequate examination practices, a reasonable fact
finder could determine that Doe Run was negligent in permitting the miner to scale in this
location because reasonable care had not been taken to determine if this location was safe to
continue the use of routine practices.
I decline to fully marshal the above referenced evidence to robustly examine or come to a
conclusion on the question of whether Doe Run was negligent in violating the requirements of
section 57.3201. That is the Judge’s job. I draw upon the contrast in the record evidence as an
illustrative tool to demonstrate how the evidence at issue is relevant to determining Doe Run’s
culpability. Because the determination of negligence is the responsibility of the Judge, I take no
position as what the outcome should be if the issues of negligence associated with each violation
were remanded.

22

A test hole demonstrates what type of rock the ground is made up of. Tr. 48-49. The
jumbo drill creates a percussion that has different sounds depending upon the condition of the
rock. Tr. 49. The test hole is drilled deeper than a hole for a bolt, which means the miners get a
better sense of the strata above. Tr. 121. A test hole could be three or four feet deeper than a
hole drilled for a roof bolt. Tr. 121.
23

My colleagues ignore that Roark testified that he did not know how to drill a test hole,
when they find that the record is devoid of evidence that test holes had not been drilled. Slip op.
at 21.

42 FMSHRC Page 568

IV.
Conclusion
In conclusion, I would affirm the Judge’s ruling that Doe Run violated the two strict
liability standards and would remand the case for a determination of whether they were S&S and
for a ruling on the level of negligence exhibited in connection with each violation. However,
because the standards impose different obligations – one imposing an obligation to control the
ground where necessary and the other requiring that scaling be performed from a safe location
– the Judge would need to conduct a separate S&S analysis and a separate negligence analysis
for each. Sierra Rock Products, Inc., 37 FMSHRC 1, 6 (Jan. 2015); Black Beauty Coal Co., 38
FMSHRC 1307, 1315 n.11 (June 2016).

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

42 FMSHRC Page 569

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

August 28, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. LAKE 2018-0340

AMERICAN AGGREGATES OF
MICHIGAN, INC.
BEFORE: Rajkovich, Chairman; Jordan, Young, Althen, and Traynor, Commissioners
DECISION
BY: Rajkovich, Chairman; Young and Althen, Commissioners
This proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2018) (“Mine Act” or “Act”). It comes before us on interlocutory review of the
decision of an Administrative Law Judge denying the Secretary’s motion to approve settlement
of a withdrawal order issued pursuant to section 104(g)(1) of the Mine Act.1 The Order asserted
that American Aggregates of Michigan, Inc. (“American Aggregates”) failed to provide a miner
“the MSHA-required 4-hours new miner training prior to beginning work at the mine.” Ex. A at
11 (Order 8952500, May 17, 2018).
The Judge concluded that the Secretary had not presented sufficient facts to support the
proposed settlement. 41 FMSHRC 382 (May 2019) (ALJ). Upon denying the settlement, the
Judge recused himself, requested that the case be reassigned to another Judge for hearing, and
certified his ruling for interlocutory review. The Commission granted interlocutory review.

1

Section 104(g)(1) of the Mine Act states:

If, upon any inspection or investigation pursuant to section 103 of this Act, the Secretary
or an authorized representative shall find employed at a coal or other mine a miner who has not
received the requisite safety training as determined under section 115 of this Act, the Secretary
or an authorized representative shall issue an order under this section which declares such miner
to be a hazard to himself and to others, and requiring that such miner be immediately withdrawn
from the coal or other mine, and be prohibited from entering such mine until an authorized
representative of the Secretary determines that such miner has received the training required by
section 115 of this Act.
30 U.S.C. § 814(g)(1).

42 FMSHRC Page 570

As set forth below, we find that the Judge failed to apply the correct standard for
consideration of settlement proposals and that the proposed settlement is fair, reasonable,
appropriate under the facts, and in the public interest. Therefore, we reverse the Judge’s denial of
the settlement motion and approve the settlement.
I.
Factual and Procedural Background
MSHA’s regulations contain detailed instructions for training new miners. 30 C.F.R.
§ 46.5(a) requires that each new miner must be provided “with no less than 24 hours of training
as prescribed by paragraphs (b), (c), and (d).” However, it permits miners to begin work before
receiving the full 24 hours of training provided they work “where an experienced miner can
observe that the new miner is performing his or her work in a safe and healthful manner.” Id.
In turn, subsection (b) permits miners to begin work with no less than 4 hours of training
and sets forth 7 general topics that must be covered during those 4 hours. 30 C.F.R.
§ 46.5(b). The 4-hour requirement of subsection 46.5(b) is at issue in this case.
On May 17, 2018, an MSHA inspector issued a section 104(g)(1) withdrawal order to
American Aggregates, the operator of the Ray Road Plant, a surface sand and gravel mine in
Oakland County, Michigan. Ex. A at 11. The order alleged that Matthew Weaver, a driller
operator/helper, “had not received the MSHA-required 4-hour new miner training prior to
beginning work at the mine . . . [and] had no previous mining experience.” 41 FMSHRC at 382;
Ex. A at 11 (Pet. for Civil Penalty). The order directed the operator to withdraw the miner from
the mine until he received the requisite training. The inspector designated the violation as
significant and substantial (“S&S”) and found the likelihood of injury as “reasonably likely” and
the expected injury to be “fatal.” He also marked the negligence as “high.” 41 FMSHRC at 383;
Ex. A at 11. MSHA applied the penalty point schedule set forth in 30 C.F.R. § 100.3 and
proposed a penalty of $2,007.2
American Aggregates contested the order. It replied that Weaver was not a driller, but
rather a driller helper. It attached exhibits to its answer setting out factual details of Weaver’s
training, including classroom training under the Occupational Safety and Health
Administration’s (OSHA) regulations and on-the-job training performing the same work at other
non-mining sites. American Aggregates disputed the Secretary’s allegations of the violation and
asserted that the injury was unlikely to occur, would only result in lost work days if it occurred,
and that there was no negligence. It also responded that the violation was not S&S.

2

Upon first impression, a penalty of $2,007 seems remarkably low for an allegedly high
negligence, S&S, high gravity violation. However, we recognize that the operator was small and
had no prior violation history. While we are not bound by 30 C.F.R. Part 100, we note that the
MSHA penalty point criteria assigned the operator only 8 penalty points before the addition of
points for negligence and gravity.

42 FMSHRC Page 571

A. Settlement Motion
On February 14, 2019, the Secretary filed a motion to approve settlement. In that motion,
American Aggregates accepted the violation. The parties agreed to the removal of the S&S
designation; modification of the likelihood of occurrence of injury from “reasonably likely” to
“unlikely;” modification of the level of gravity from “fatal” to “lost work days or restricted
duty;” and reduction of negligence from “high” to “moderate.” The Secretary modified the
proposed penalty from $2,007 to $132. In doing so, the Secretary applied his regulatory penalty
criteria and penalty point formulation to the terms of the violation as accepted by American
Aggregates. In other words, $132 would have been the prescribed penalty under MSHA’s
regulations if the violation had been cited as it was proposed to be settled.
The motion stated that American Aggregates offered the following facts to support its
position:
Respondent asserts that Matthew Weaver was not a driller but was
a Driller’s Helper. Respondent contends that Weaver had received,
at the time the order was issued, 19.5 hours of OSHA related
classroom training, had received 4 hours of New Miner Training
and had received on-the-job training working directly with its
driller. Respondent concedes that on the day of the inspection
Weaver had not received training on all seven subject[s] required
by 30 C.F.R. 46.5 including 46.5(b)(4) 46.5(b)(5), 46.5(b)(6) and
46.5(b)(7), and the MSHA training that Weaver had received had
not been properly documented. Respondent stated that although
Weaver had no previous mining experience, he did have
approximately one month of experience working with its driller as
a Driller’s Helper taking core samples at a non-mine property
being considered for purchased [sic] for future mining. Respondent
avows that Weaver’s work off mine property was the exact same
work conducted with the same drill rig the day the withdrawal
order was issued. Respondent maintains that Weaver worked
directly with and [sic] closely supervised by its driller.
41 FMSHRC at 383; S. Settlement Mot. at 3-4.
For his part, the Secretary asserted:
In reaching this settlement, the Secretary has evaluated the value of
the compromise, the likelihood of obtaining a better settlement,
and the prospects of coming out better or worse after a trial. . . .
The Secretary believes that maximizing his prosecutorial impact in
such a manner serves a valid enforcement purpose. Even if the
Secretary were to substantially prevail at trial, and to obtain a
monetary judgment similar to or even exceeding the amount of the
settlement, it would not necessarily be a better outcome from the

42 FMSHRC Page 572

enforcement perspective than the settlement, in which all alleged
violations are resolved and violations that are accepted can be used
as a basis for future enforcement actions. A resolution of this
matter in which all violations are resolved is of significant value to
the Secretary and advances the purposes of the Act.3
S. Settlement Mot. at 2.
After reviewing the settlement, the Judge requested clarification from the parties on
several points. The Secretary responded that he relied on the settlement motion as filed,
consistent with the standards articulated by the Commission in The American Coal Co., 38
FMSHRC 1972 (Aug. 2016) (“AmCoal I”).
B. The Judge’s Decision
The Judge concluded that the motion did not support settlement because the operator
acknowledged that it did not provide mandatory training on all topics set forth in 30 C.F.R.
§ 46.5(b) such as section 46.5(b)(4) (hazard task training) and (b)(7) (rules and procedures for
reporting hazards), and that an injury resulting from the violation was “likely to result in lost
work days or restricted duty.” To a great extent, the Judge focused on the removal of the S&S
designation finding that “the admitted facts do not support removal of the S&S designation.” 41
FMSHRC at 386. The Judge further noted that the settlement proposed a significant percentage
reduction of the penalty—about 94%.4
The Judge rejected the Secretary’s contention that the settlement served any future
enforcement benefit. He concluded that the settlement was not fair, reasonable, appropriate or in
the public interest and rejected the settlement. He certified, on his own motion, his ruling for
interlocutory review. Finally, having essentially taken a position upon reviewing the settlement
motion that the violation was S&S, in an act of judicial statesmanship, the Judge recused himself
from the case and requested that it be assigned to an alternative Judge.
On June 6, 2019, the Commission directed review of whether to uphold the Judge’s
denial of the settlement.

3

This is standard language used by the Secretary in many settlement agreements. It states
concerns for the Secretary in arriving at settlement—namely, the risk of litigation and the
importance of obtaining admission of alleged violations without the necessity for a contentious
hearing.
4

The Judge did not mention the conformance of the penalty with MSHA’s regulatory
penalty point system in light of the agreement of the parties.

42 FMSHRC Page 573

II.
Disposition
A. Parties’ Arguments
In concert, the parties argue that the Judge erred by failing to apply the appropriate
standard for reviewing proposed settlements as articulated by the Commission in AmCoal I and
The American Coal Co., 40 FMSHRC 983 (Aug. 2018) (“AmCoal II”). Specifically, they assert
that the Judge failed to consider the settlement holistically, and instead, engaged in a piecemeal
review of aspects of the settlement in isolation, focused almost exclusively on the S&S
designation that the operator contested in its Answer.
The Secretary also contends that the Judge erred by discounting the future enforcement
value of the modified order. Further, the Secretary contends that the significant penalty reduction
in this case was a direct product of reassessing the penalty under the Part 100 standards for
regular assessments based on the penalty criteria that fairly and appropriately reflected the
modified designations of negligence and gravity the parties agreed to in the settlement motion.
As re-evaluated by the Secretary, the violation would result in penalty points significantly below
the point value that results in the minimum penalty.5
American Aggregates argues that the terms of the settlement reflect a compromise the
parties reached after negotiation, with both parties making concessions. In particular, it contends
that it agreed to accept the violation despite providing documentary evidence that the miner
received more training than required under section 46.5, including extensive OSHA training, 4
hours of new miner training, and on-the-job training. Thus, American Aggregates argues that the
violation is for the failure to cover some of the seven expressly prescribed topics during the 4
hours of new miner training it did provide. It further argues that it covered several of the required
topics and had already provided 19.5 hours of training in accordance with OSHA regulations.6
American Aggregates further contends that the parties’ settlement was not an admission
of adverse facts as asserted by the Judge, and that the Judge erred by characterizing the parties’
settlement as an agreement to “fundamental, undisputed facts.” 41 FMSHRC at 388. American
5

The minimum penalty under the Secretary’s regulation for penalty point assessments at
30 C.F.R. § 100.3 at the time of the violation was $132 for a violation with 60 or fewer penalty
points. As found in the Order, and under the Secretary’s penalty point criteria, the violation
parameters totaled 94 points for the $2,007 assessment. As agreed upon in the settlement, the
violation parameter reductions would render a point value of 44 points, which is far below the
regulation’s 60 point threshold.
6

The settlement motion submitted by the parties states the operator’s assertion that it
provided 19.5 hours of OSHA training whereas the operator’s Answer to the penalty petition
states it provided 19.25 hours of training on a long list of topics. The operator further asserts, in
its brief to us, that it provided over 30 hours of OSHA and MSHA training. In the interest of
consistency, and while not making a fact-finding on this point, we use 19.5 hours as noted in the
settlement motion that was before the Judge.

42 FMSHRC Page 574

Aggregates asserts a continuing disagreement with certain factual allegations, as reported in the
settlement agreement, but that it agreed to accept the violation and related designations in order
to settle the proceeding.
American Aggregates also argues that the Judge erred in mischaracterizing its position on
several matters in his order denying settlement.7 Specifically, it points to the Judge’s error in
stating that American Aggregates “acknowledge[d] that the injury would still potentially result in
lost work days or restricted duty,” noting that it disputed both in its Answer and the settlement
motion. Id. at 384. American Aggregates also agrees with the Secretary that the Judge’s
characterization of the penalty reduction was exaggerated because he focused on a percentage
but failed to take into consideration that the reduced proposed penalty reflected a new assessment
amount based on calculations using the Secretary’s Part 100 regulations as applied to the settled
terms of the violation.
Both parties assert that the settlement satisfies the standard set forth in AmCoal and ask
the Commission to vacate the Judge’s decision and approve the settlement.
B. Commission Review
Under section 110(k) of the Mine Act, Congress vested the Commission with authority to
approve settlements of contested assessments. 30 U.S.C. § 820(k); AmCoal I, 38 FMSHRC at
1975. While such authority is internally delegated to the Commission Administrative Law
Judges in the first instance, the Commissioners retain full authority regarding settlements.8
We have held that in reviewing settlements, “the Commission and its Judges consider
whether the settlement of a proposed penalty is “fair, reasonable, appropriate under the facts, and
protects the public interest.” AmCoal I, 38 FMSHRC at 1976. That is the legal standard

7

In its brief to the Commission, American Aggregates points out that it submitted
documentary support of the extensive training it did provide the miner, which included section
46.5(b)(4) topics. It also disputes the Judge’s statement questioning the alleged contention that it
was “‘unaware that the training the miner received’ was not sufficient.” 41 FMSHRC at 384.
8

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 Commission has
explained that “Congress authorized the Commission to approve the settlement of contested
penalties ‘. . . to ensure penalties serve as an effective enforcement tool, prevent abuse, and
preserve the public interest.’” AmCoal I, 38 FMSHRC at 1976 (quoting Black Beauty Coal Co.,
34 FMSHRC 1856, 1862 (Aug. 2012)).

42 FMSHRC Page 575

governing settlements.9 In turn, the decision whether a settlement is fair, reasonable, appropriate
under the facts, and protects the public interest is made on the basis of a submission by the
Secretary to which the operator has agreed. See Hopedale Mining, LLC, 42 FMSHRC ___, No.
LAKE 2019-0149 (Aug. 28, 2020)
During the review of a proposed settlement, the Judge is not to engage in fact finding as
he would post-hearing. See Solar Sources, LLC, 41 FMSHRC 594, 602 (Sept. 2019) (“At the
pre-hearing settlement stage of a Commission proceeding, no evidence has been adduced into the
record and the Judge is not required to engage in fact finding.”). Judges may not “assign[]
probative value to some facts without the benefit of an evidentiary hearing.” AmCoal II, 40
FMSHRC at 991. Hence, the analysis of submitted facts in a settlement proposal is markedly
different from an analysis of admitted evidence in a hearing.10
Whether a violation is S&S is a matter in the first instance of prosecutorial discretion.
The Mine Act, therefore, recognizes the particular expertise of MSHA in judging whether a
violation is S&S. Indeed, if MSHA does not charge an S&S violation, the Commission cannot
make an S&S finding. Mechanicsville Concrete, Inc., 18 FMSHRC 877, 879-80 (June 1996).
Commission Judges do not have the discretion to make such elevated finding unless it is asserted
in the first instance by MSHA. The Judge therefore should not have applied the Newtown
Energy, Inc., 38 FMSHRC 2033 (Aug. 2016), test for S&S determinations to a settlement.
C. The Judge Erred By Denying the Settlement
As the Commission articulated in AmCoal, the Commission and its Judges consider
whether the settlement of a proposed penalty is “fair, reasonable, appropriate under the facts, and
protects the public interest.” The Commission must review the Judge’s determination to ensure
that “a Judge’s approval or rejection of a settlement is ‘fully supported’ by the record, consistent
with the statutory penalty criteria, and not otherwise improper.” However, “abuses of discretion
9

The dissent eschews any review of the settlement in favor of advocating, thankfully in a
more temperate manner than in Hopedale, their focus upon granting Judges carte blanche to deny
settlements. We do not agree with the dissent’s contention that the Judge has such “wide
discretion” (slip op. at 13-15, 18) or that “there must be a demonstration that no reasonable Judge
would have any grounds for denial [of the settlement] . . . in application of the AmCoal standard”
(id. at 18) in order to vacate a Judge’s denial. The standard of review of a Judge’s settlement
determination is not a deferential one, but one of whether the Judge has complied with the law
and whether his determination is supported by the record before him. See Black Beauty Coal Co.,
34 FMSHRC 1856, 1864 (Aug. 2012).
10

In this respect, the review of a settlement bears a resemblance to a ruling on cross
motions for summary judgment. The parties present a factual basis and ask for a legal
conclusion. Regarding settlements, the Judge ultimately reaches a legal conclusion whether the
joint position of the parties satisfies the established legal basis for settlement. Thus, a settlement
decision fundamentally is a legal decision based upon an undisputed and joint submission. Of
course, an important difference is that for cross motions for summary judgment, the facts must
be uncontested whereas, in a settlement, differences regarding the facts and the ability of each
party to sustain its position may be a driving force for settlement.

42 FMSHRC Page 576

or plain errors are subject to reversal.” Black Beauty, 34 FMSHRC at 1864 (citing Knox County
Stone Co., 3 FMSHRC 2478, 2480 (Nov. 1981)). Here, the Judge plainly erred by denying the
settlement on the basis of an inappropriate legal determination on S&S on an undeveloped record
and in contravention to the facts presented by the parties in support of the settlement.
In denying the settlement, the Judge concluded that “the admitted facts do not support
removal of the S&S designation,” 41 FMSHRC at 386, focusing on the lack of training and the
“reasonable likelihood that the untrained-miner hazard contributed to by the violation [would]
result in an injury that would result in lost workdays or restricted duty.” Id. at 388. Not only is
the Judge’s analysis not supported by the facts presented by the parties, but it is an erroneous
exercise of judicial decision making at this preliminary stage of the proceeding.
It was undisputed that the miner received 4 hours of new miner training, but that he did
not receive all 7 modules that are to be covered during those 4 hours. The violation in this case
is, then, the absence of certain modules that an individual must have before working as a miner.11
In settling, the parties essentially agree on the following facts as provided by American
Aggregates in its Answer and as noted above. The miner received 4 hours of new miner training,
but missed certain modules. MSHA does not contest that he previously received 19.5 hours of
safety training. The miner worked as a helper rather than a driller. During the prior month of
work, he was doing the same job, on the same remote terrain, and under the supervision of the
same driller. S. Settlement Mot. at 3. The parties further agree that this violation involved
moderate negligence with the unlikely possibility of a lost work day injury. Given American
Aggregates’ acceptance of the violation, and based upon the foregoing, both parties agree that
the settlement is justified.12
In evaluating the settlement, the Judge misapprehended the correct standard for reviewing
settlements, opting instead to conduct a private, unsupported S&S analysis under the Newtown
test. At the pretrial settlement phase of litigation, Judges may not “assign[] probative value to
some facts without the benefit of an evidentiary hearing.” AmCoal II, 40 FMSHRC at 991.
Hence, any fact finding or legal conclusions made based on the facts supplied by the parties in
support of their settlement motion is not appropriate in the Judge’s review of a proposed
settlement.
The Judge ignored most of the information relevant to the reasonableness of the
settlement under the AmCoal I criteria. The Judge failed to take into consideration the many
elements of the agreement of the parties, specifically, those included in paragraph 6 of the
11

The order asserts that the miner “had not received the MSHA-required 4-hour new
miner training prior to beginning work at the mine.” Ex. A at 11. The issue in this case is the 4
hours of new miner training before beginning work required by 30 C.F.R. § 46.5(b).
12

If, in undertaking a post-citation or order review, MSHA learns a violation was overcited, we do not consider it a failure for MSHA to reconsider the appropriate designations for a
violation. While a Judge may require a satisfactory explanation for the reconsideration, we
obviously would not require MSHA to obstinately support cited conditions after it has
determined, in the proper exercise of its prosecutorial discretion, not to be appropriate.

42 FMSHRC Page 577

Secretary’s settlement motion cited above. These facts are directly applicable to consideration of
the proposed settlement under the proper standard of review articulated in AmCoal I. In sum, the
Secretary provided significant factual information to support the proposed settlement.13
Of course, even in a settlement, the parties may not be amenable to “admitting” the
correctness of the other party’s position on an issue of law or that a party erred in its evaluation
of the facts. Therefore, settlements must be read with a realistic eye to the positions of the parties
in moving toward settlement.
In his S&S-focused analysis, the Judge disregarded a host of circumstances
demonstrating errors by the inspector and other factors supportive of acceptance of the
settlement:14
•

Contrary to the inspector’s belief, the miner was not a driller, but rather, was a helper.
The significance is that he was continuously under the control and direction of the driller.

•

As a driller helper, the miner was working in open virgin areas drilling ground samples to
evaluate for possible future mining. Thus, he did not work near a quarry or pit face or
around such mining equipment.

•

The miner had 4 hours of new miner training. The violation was for not covering all the
modules set forth in subsection 46.5(b).15
13

Our dissenting colleagues make the same mistake that the Judge did below, focusing
almost exclusively on the percentage of the penalty reduction without regard to the abundance of
factual support provided by the parties to support modification of the order and subsequent
reduction of the penalty. Slip op. at 15-16 & n.3. These facts are significant not for establishing
findings of fact in the record, but for explaining the basis of the parties’ settlement. In evaluating
the settlement, the Judge and Commission must meaningfully consider and assess the factual
explanation provided by the parties without making credibility determinations or resolving
conflicts in the record. Neither the Judge below nor the dissent engages in such evaluation of the
facts pertaining to the violation at issue in this settlement. We consider such facts for the limited
purpose of ascertaining whether the proposed settlement is “fair, reasonable, appropriate under
the facts, and protects the public interest.”
14

In reciting these points, we do not make findings of fact. Instead, we recite these points
as those made by the operator, with supporting documentation, which the Secretary validly could
consider in reaching settlement and that, in turn, the Commission must consider in reviewing the
settlement.
15

The Respondent claims 30 C.F.R. § 46.5(b)(4) training was completed. AA Br. at 5;
AA Answer at 4-5, Ex. B (attached). It admits subsections (b)(5), (6), and (7) were not
completed. These are: (b)(5) Instruction on the statutory rights of miners and their
representatives under the Act; (b)(6) A review and description of the line of authority of
supervisors and miners’ representatives and the responsibilities of such supervisors and miners’
representatives; and (b)(7) An introduction to rules and procedures for reporting hazards.

42 FMSHRC Page 578

•

With regard to topics bearing upon safety, the driller was not “untrained.” In fact, the
parties accepted that the miner had received 19.5 hours of training that covered virtually
all aspects related to safe operations.

•

Further, the miner had a full month of on-the-job experience as a driller helper doing the
same work at the mine site during the preceding month.

•

During that same preceding month working as a driller helper, the miner worked on the
same type of terrain as when the drill moved onto a mine site.

•

During that same preceding month as a driller helper, the miner worked under the same
driller who was supervising him on the mine site.

•

Section 46.5(e) provides “Practice under the close observation of a competent person
may be used to fulfill the requirement for training on the health and safety aspects of an
assigned task in paragraph (b)(4) of this section, if hazard recognition training specific to
the assigned task is given before the miner performs the task.” 30 C.F.R. § 46.5(e).
Because the miner previously performed the same tasks and worked for a month under
the supervision of the same driller, there is evidence the miner may have had experience
with the health and safety aspects of being a driller helper as described in subsection
46.5(b)(4).16

•

Having reviewed these facts, MSHA considered that the occurrence of an injury was
“unlikely.” The motion expressly stated the contention that “because of the training that
Weaver had received, the experience Weaver had obtained working as a Driller’s Helper
and the close supervision by it[s] driller, it was ‘unlikely’ that Weaver would incur an[]
injury.’” S. Br. at 6, n.2 (citation omitted). The parties’ agreement that an injury was
“unlikely” (S. Settlement Mot. at 4) is reasonable based on the miner’s status as a helper,
close supervision, prior significant training, receipt of new miner training, prior on the
job training, and remoteness of the area from danger from proximity to a pit or other
operational area. The Secretary explained in his brief that “no reading of the settlement
agreement can support the judge’s view.” S. Br. at 6, n.2.

Instead of focusing on the above points, the Judge concentrated on his finding, without a hearing,
that the violation was S&S. Again, it is not appropriate to make such a finding during a
settlement review.

16

The dissent accuses us of making an argument not raised by the parties in noting the
potential applicability of section 46.5(e) to the circumstances of this case. Slip op. at 17.
However, we note this specific provision of the Secretary’s training regulations because it is
particularly relevant to the circumstances of this case. We cannot and do not make a legal
conclusion as to whether the operator was in compliance with the Secretary’s training
requirements. However, we have the right and duty to consider the law in determining whether
the Judge’s decision was correct. In fact, the Judge should have considered that part of the law in
evaluating the true character of the offense, but did not.

42 FMSHRC Page 579

In general, when the Commission’s review of the record demonstrates a proper
consideration by a Judge of a motion and legal standard for settlements, the Commission sustains
the Judge’s action. However, when a motion, including admissions and concessions of the parties
demonstrate the Judge erroneously failed to accept a settlement that meets the legal standard for
approval, the denial of a settlement must be reversed.17
In reaching our decision in this case, we emphasize the importance of all aspects of
training, and most definitely, the mandatory 4 hours of training before commencing any work.
This training is important for the avoidance of accidents and injuries when a worker becomes a
miner for the first time. It is for this reason, of course, that the regulations require that such an
employee must work under the watchful eye of an experienced miner who can observe the new
worker’s performance for health and safety reasons. Our holding, here, is not a diminution by us
of the importance of training.
In this case, American Aggregates admits that the regulation was violated—but this is a
settlement case. The Secretary’s evaluation toward settlement apparently led him to accept that
the involved miner had received many more hours of training than the necessary hours required
by subsection 46.5(b) with a significant focus on safety and health. The Secretary gave credence
to the fact that the inspector had misidentified the employee as a driller when, in fact, he had a
lesser job as a driller helper under supervision of a driller. The Secretary further gave recognition
to the month of experience by the new miner in performing the same work, with the same
driller/supervisor, on the same type of terrain as at the mine—and removed from the danger of
active mining equipment in his job.
In evaluating the violation under the totality of these circumstances, which the Judge
failed to do, the Secretary acted reasonably in agreeing to acceptance of the violation in return
for a settlement entailing modification of gravity and negligence. It is a fair compromise to hold
the operator accountable for its actual failures and to allow the Secretary to proceed with
efficient use of his resources. In addition, the Secretary benefits from reliance on this violation in
the operator’s violation history for future enforcement.
Regarding the Secretary’s use of its penalty point system for purposes of settlement in
this case, we reiterate that it is the right and duty of the Commission to assess penalties,
irrespective of any system that the Secretary may use. That being said, we note that in
settlements, the Judge is not setting the penalty, but instead, is evaluating whether the proposed
penalty is part of a fair and reasonable settlement.

17

We disagree that reversal of a Judge’s denial of a settlement may occur only when “no
reasonable Judge would have any grounds for denial under the numerous criteria to be
considered in application of the AmCoal standard.” Slip op. at 18. The Commission has recently,
and unanimously, reversed a Judge’s denial of a settlement without applying the standard
suggested by the dissent. The Ohio County Coal Co., 40 FMSHRC 1096, 1098-1100 (Aug. 2018)
(reversing a Judge’s denial of the settlement based on his failure to apply the appropriate
standard and because his reasoning that “an internal inconsistency in the settlement terms that
undermines the parties’ agreement” was “unsound”).

42 FMSHRC Page 580

Primary authority to approve settlements of contested proposed assessments is vested by
Congress to the Commission. 30 U.S.C. § 820(k); AmCoal I, 38 FMSHRC at 1976. While such
authority may be delegated to the Judges, the Commissioners retain such full authority to
approve such settlements. Accordingly, we find the proffered penalty to satisfy AmCoal.
III.
Conclusion
Based upon a careful review of the settlement motion and entire record, we conclude that
the settlement is fair, reasonable, appropriate, and in the public interest. Therefore, we vacate the
Judge’s decision, approve the settlement motion, and assess a penalty of $132.18

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

/s/ Michael G. Young
Michael G. Young, Commissioner

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

18

Commissioner Young believes that remand of improper settlement rejections would
ordinarily be more appropriate than approval by the Commission, in light of our Judges’
experience in reviewing settlements. But we have approved such settlement agreements here,
when appropriate. See, e.g., Solar Sources, 41 FMSHRC at 600; Ohio County, 40 FMSHRC at
1100. In this case, we would be required to remand to a different Judge, who would need to
begin the consideration process anew. That fact, and the marginal likelihood that a significantly
greater penalty would be assessed by a new Judge on the facts provided by the parties here,
compel him to agree with the decision to approve the settlement.

42 FMSHRC Page 581

Commissioners Jordan and Traynor dissenting:
American Aggregates of Michigan, Inc. (“American Aggregates”) was charged with
failing to provide required training to a miner. The parties agreed to settle the case for a $132
penalty (a reduction of more than 93%). The Judge denied the settlement motion. Because we
conclude that it was well within the Judge’s discretion to refuse to approve such a significant
penalty reduction, we would affirm his decision.
We would affirm the decision of the Judge under the abuse of discretion standard we
have long applied to review of our Judges’ exercise of discretionary authority to approve or deny
settlement pursuant to section 110(k) of the Act, 30 U.S.C. § 820(k). We have long held “[t]he
judge’s front line oversight of the settlement process is an adjudicative function that necessarily
involves wide discretion.” Knox County Stone Co., 3 FMSHRC 2478, 2479 (Nov. 1981). The
Commission “has stated repeatedly, if a Judge disagrees with a stipulated penalty amount or
believes that any questionable matters bearing on the violation or appropriate penalty amount
need to be clarified through trial, he is free to reject the settlement and direct the matter for
hearing.” Pontiki Coal Corp., 8 FMSHRC 668, 675 (May 1986). Thus, if a Judge’s approval or
rejection of a settlement is “‘fully supported’ by the record, consistent with the statutory penalty
criteria, and not otherwise improper, it will not be disturbed, but . . . abuses of discretion or plain
errors are subject to reversal.” Black Beauty Coal Co., 34 FMSHRC 1856, 1864 (Aug. 2012).
An abuse of discretion may be found if there is no evidence to support the decision or if the
decision is based on an improper understanding of the law. Id. at 1863 (citing Utah Power &
Light Co., 13 FMSHRC 1617, 1623 n.6 (Oct. 1991) (citations omitted)).
Our precedents governing our proper review of our Judges’ discretion to approve or deny
settlements is reviewed at length in our dissent in Hopedale Mining, LLC, 42 FMSHRC ___, slip
op. at 18-22, No. LAKE 2019-0149 (Aug. 28, 2020), issued on the same day as our decision in
this case. Though application of those precedents in this case should result in affirmance of the
Judge’s decision to deny the parties’ settlement motion, his decision is nonetheless vacated by
the majority. The decision below should have been affirmed as a reasonable exercise of the
Judge’s discretion. When the government and an operator seek Commission approval of their
agreement to compromise a penalty, they have the burden of persuading a Judge exercising
reasonable discretionary judgment that the proposed penalty reduction is “fair, reasonable,
appropriate under the facts, and in the public interest.” The American Coal Co., 38 FMSHRC
1972, 1976 (Aug. 2016) (“AmCoal I”).
As a threshold matter, we are obliged to address the majority’s decision to discard the
abuse of discretion standard, and its assertion that “[t]he standard of review of a Judge’s
settlement determination is not a deferential one.” Slip op. at 7-8, n.9. In fact, the Commission
has repeatedly used abuse of discretion review in analyzing Judges’ decisions regarding
settlement motions. See, e.g., The American Coal Co., 40 FMSHRC 983, 987 (Aug. 2018)
(“AmCoal II”); Rockwell Mining, LLC, 40 FMSHRC 994, 996 (Aug. 2018); Black Beauty, 34
FMSHRC at 1869. And abuse of discretion review is, at the core of its essence, a highly
deferential standard. See, e.g., Gall v. U.S., 552 US 38, 56 (2017) (“The Court of Appeals gave
virtually no deference to the District Court’s decision . . . [and] [a]lthough the Court of Appeals
correctly stated that the appropriate standard of review was abuse of discretion, it engaged in an

42 FMSHRC Page 582

analysis that more closely resembled de novo review of the facts presented . . . .”); General
Electric Co. v. Joiner, 522 U.S. 136, 143 (1997) (“In applying an overly ‘stringent’ review to [a
discretionary] ruling, [the Court of Appeals] failed to give the trial court the deference that is the
hallmark of abuse-of-discretion review.”); In re Lupron Mktg. & Sales Practices Litig., 677 F.3d
21, 30-31 (1st Cir. 2012) (citations omitted) (“We review a district court’s approval of a
proposed class action settlement for abuse of discretion. . . . The abuse of discretion standard is
highly deferential and ‘not appellant-friendly’”).
Our Judges have wide discretion to reject the parties’ proposal to compromise a penalty,
provided the Judge has considered each of these American Coal factors, the section 110(i)
penalty criteria, and other factors we have held relevant to the discretionary determination.1
Here, the Judge did just that.
The training standard at issue, 30 C.F.R. § 46.5, requires, in relevant part, that each new
miner must be provided “with no less than 24 hours of training.” 30 C.F.R. § 46.5(a).2
Subsection (b) sets forth the general topics that must be covered in the 24 hours of new miner
training prior to a miner beginning work at the mine. The settlement motion conceded that the
operator failed to train the miner on the topics contained in sections 46.5(b)(4)-(7), which
mandate training on:
(4) [i]nstruction on the health and safety aspects of the
tasks to be assigned, including the safe work procedures of such
tasks, the mandatory health and safety standards pertinent to such
tasks, information about the physical and health hazards of
chemicals in the miner’s work area, the protective measures a
miner can take against these hazards, and the contents of the
mine’s HazCom program;
(5) Instruction on the statutory rights of miners and their
representatives under the Act;
(6) A review and description of the line of authority of
supervisors and miners’ representatives and the responsibilities
of such supervisors and miners’ representatives; and

1

These other factors for consideration include the future enforcement value of accepting
violations as written, AmCoal II, 40 FMSHRC at 989; the possibility of criminal penalties,
Aracoma Coal Co., 32 FMSHRC 1639, 1641 (Dec. 2010); settlement provisions requiring
operator implement personnel changes or training improvements, AmCoal I, 38 FMSHRC at
1982; and deterrence, Black Beauty, 34 FMSHRC at 1864-65.
2

The order alleged a violation of this provision – section 46.5(a). It specified that the
miner had not received the MSHA-required 4-hour new miner training prior to beginning work at
the mine.

42 FMSHRC Page 583

(7) An introduction to . . . rules and procedures for
reporting hazards.
30 C.F.R. § 46.5(b)(4)-(7) (emphasis added).
The training requirements in section 46.5 are based on the language of the Mine Act.
Section 115(a) of the Act requires operators to have a health and safety training program
approved by the Secretary. 30 U.S.C. § 825(a). The new miner training requirements in section
115(a)(2) of the Act formed the basis for much of the specific training mandates in 30 C.F.R.
§ 46.5. The statutory training provision states that each training program shall provide as a
minimum that:
[n]ew miners having no surface mining experience shall
receive no less than 24 hours of training if they are to work on the
surface. Such training shall include instruction in the statutory
rights of miners and their representatives under this Act, use of
the self-rescue device where appropriate and use of respiratory
devices where appropriate, hazard recognition, emergency
procedures, electrical hazards, first aid, walk around training and
the health and safety aspects of the task to which he will be
assigned.
The Mine Act also requires each operator to verify that the miner has received the
specified training in each subject area of the approved training plan. 30 U.S.C. 825(c). In
addition, Congress was so emphatic about the importance of miner training that it included in the
Mine Act a provision that a miner who has not received the requisite training must be deemed “a
hazard to himself and to others” and immediately withdrawn from the mine and prohibited from
re-entering until the miner has received the required training. 30 U.S.C. § 814(g)(1).
MSHA’s original proposed assessment for this violation was $2,007. The Secretary’s
settlement motion proposed a reduction of the proposed penalty to $132.3 It was entirely within
the Judge’s discretion to conclude that the parties had failed to demonstrate that such a dramatic
reduction of a penalty imposed for a violation of the critical training requirements outlined above
met the American Coal standard. We fail to see how this slap-on-the-wrist penalty amount could
possibly serve to deter mine operators from future violations of safety standards. We strongly
suspect that paying this penalty (which is less than the amount of some traffic tickets) would be
less expensive for the operator than the costs involved in properly training this miner. How the
public interest in ensuring miner safety is satisfied by this penalty is a mystery. And even if we
disagreed with the Judges’ conclusions that such a large penalty reduction was not fair or
reasonable, we cannot see (and the majority does not explain) how and why these conclusions
fall outside the boundaries of the Judge’s wide discretion.
3 Under the Secretary’s penalty regulations in effect at the time the settlement motion

was filed, $132 was the minimum amount the Secretary could assess for a violation. 30 C.F.R. §
100.3 (2018). Of course, Commission Judges are not bound by the Secretary’s penalty
regulations set forth at 30 C.F.R. Part 100. The American Coal Co., 40 FMSHRC 1011, 1015
(Aug. 2018).

42 FMSHRC Page 584

Our colleagues reverse the Judge’s denial of the settlement and approve it. In so doing,
they entirely mischaracterize his decision. If one reviewed only their opinion and failed to read
the Judge’s, the reader would come away with the impression that the Judge’s ruling was based
almost entirely on his view that the S&S designation should not have been deleted as part of the
settlement. See slip op. at 8, 9. This gives short shrift to the fact that this dramatic decrease in the
penalty – in addition to several other factors – motivated the Judge’s denial. In his nine-page
decision, he stated three times that the 93.5% reduction in the penalty was troubling. See 41
FMSHRC 382, 386 (May 2019) (“While a significant reduction in the proposed assessment
amount is not impermissible as part of a proposed settlement agreement, the steep reduction
invites closer scrutiny of the facts presented to ensure that the settlement is ‘fair, reasonable,
appropriate under the facts, and in the public interest,’ consistent with Commission precedent”);
see also id. at 388, 389.
The majority claims that the Judge failed to view the settlement as a whole, but the
Judge’s own words belie that charge:
In the present settlement agreement . . . the parties seek to
modify the likelihood of occurrence, the severity of injury, the
S&S designation, and the negligence of the underlying Order. In
addition, the parties seek to reduce the proposed penalty by wellnigh 94%. Almost any future enforcement benefit . . . has been
almost completely eliminated. . . . The Secretary asks that I
approve a 93.5% penalty reduction, as well as modifications to
nearly every portion of the original Order issued for violation of a
mandatory training standard, enshrined in the text of the Mine Act,
on the basis of admitted facts that bear no interpretation other than
the fact that [the operator] violated the Act.
Id. at 388-89.4
Abandoning all pretense of “abuse of discretion” review, the majority attempts to
persuade us that the settlement deserves approval by convincing us of their own view that the
admitted lack of miner training was not really that bad.5 Despite the parties’ concession in the
settlement motion that the miner “had not received training on all seven subject[s] required by 30

4

In addition, the Judge explicitly included in his written opinion the section of the
Secretary’s settlement motion (paragraph 6) setting forth the facts in support of settlement. 41
FMSHRC at 383.
5

They do not even attempt to explain away the operator’s concession that it did not have
the appropriate documentation of the miner’s training. AA Br. at 6.

42 FMSHRC Page 585

C.F.R. § 46.5 including 46.5(b)(4)–(7) (S. Settlement Mot. at 3),6 our colleagues find solace in
the fact that he was drilling ground samples in an open area (slip op. at 9), “removed from the
danger of active mining equipment” (id. at 11), which, we suppose, leads them to conclude that
the lack of training would not be hazardous. In stating that “the parties accepted that the miner
had received 19.5 hours of training” (id. at 10), they fail to take into account that this was not
training pursuant to the mine’s approved training program, but instead was OSHA training. They
appear to equate OSHA training with mine safety training, despite the fact that the record does
not demonstrate that the two are the same. Did not the Judge have discretion to come to a
different conclusion?
They also make a legal argument on behalf of the parties – one not included in the
settlement motion or in briefs to the Commission – that the operator actually was in compliance
pursuant to section 46.5(e) (“practice under the close observation of a competent person”).7 Slip
op. at 10. They conclude – on the basis of no record evidence – that his work under the
supervision of a driller “appear[ed]” to provide him with the precise health and safety aspects of
being a driller helper as described in subsection 46.5(b)(4). Id.8 In short, their vigorous
arguments for approving the motion run counter to the letter and the spirit of abuse of discretion
review of settlements.
Moreover, the Secretary’s argument that the Judge erred by discounting the future
enforcement value of the modified order barely passes the laugh test. S. Br. at 7. The future
enforcement value of an order modified from “fatal” to “lost workdays or restricted duty,” from
high negligence to moderate, with the likelihood of occurrence changed from “reasonably likely”
to “unlikely” and with a deleted S&S designation, can hardly be viewed as a potent weapon of

6

We note with interest our colleagues’ apparent acceptance of a claim made in the
operator’s brief (AA Br. at 5) that section (b)(4) training (instruction in the health and safety
aspects of the job) was completed (slip op. at 9 n.15) when the settlement motion clearly states
otherwise. This, despite the fact that they emphasize a Judge “is not to engage in fact finding,”
and must analyze the “submitted facts in a settlement proposal.” Id. at 7 (emphasis in original).
We question, how, given these constraints, our Judges and the Commission can heed the
majority’s mandate to “meaningfully consider and assess the factual explanation provided by the
parties.” Id. at 9, n.13.
7

The majority attempts to conjure a non-existent distinction between the error in stating
“a legal conclusion” in a settlement case (slip op. at 8) as opposed to “the right and duty to
consider the law,” where it chastises the Judge for failing to consider this provision “in
evaluating the true character of the offense.” Id. at 10, n.16. Were the majority decision
susceptible to appellate review, such flawed reasoning would not survive scrutiny.
8

We are at a loss to reconcile this analysis with what our colleagues meant in their
Hopedale opinion where they claim principles of “party presentation” prohibit a Judge
evaluating a settlement motion from looking beyond the facts and explanations presented in the
parties’ motion. Hopedale Mining, LLC, 42 FMSHRC at ___, slip op. at 5-6, No. LAKE 20190149 (Aug. 28, 2020).

42 FMSHRC Page 586

mine safety enforcement.9 More importantly, by what measure, other than their own personal
views to the contrary, do our colleagues determine the Judge’s conclusion with respect to
enforcement value of the modified order is outside the bounds of the Judge’s discretion?
The majority reverses the Judge’s denial of the settlement motion because it concludes
that the settlement is “fair, reasonable, appropriate, and in the public interest.” Slip op. at 12.
However, it fails to demonstrate that there is “no evidence” to support the Judge’s decision or
that it was based on a misunderstanding of the law.10 Black Beauty, 34 FMSHRC at 1863. Our
colleagues reverse the Judge and approve the settlement, not even attempting to comply with or
distinguish black letter case law providing our Judge’s wide discretion. These precedents
mandate an abuse of discretion review of our Judges’ application of the multi-factor standard for
approval of settlements, which is fundamentally inconsistent with the majority’s use of de novo
review to substitute its preferred conclusions and outcome. The majority decision erroneously
forecloses the possibility that on remand, the Judge “(like a new jury after a mistrial) might later,
in the exercise of its lawful discretion, reach the same result for a different reason.” Fed. Election
Com’n v. Akins, 524 U.S. 11, 25 (1998). Unfortunately, our colleagues have plainly lost sight of
the proper application of the deferential abuse of discretion standard. See Piper Aircraft Co. v.
Reyno, 454 U.S. 235, 266-67 (1981) (noting that the appellate court “expressly acknowledged
that the standard of review was one of abuse of discretion,” but chastising it because “the Court
of Appeals seems to have lost sight of this rule, and substituted its own judgment for that of the
District Court.”).

9

The Judge properly compared the enforcement value of the modified order with those of
the unmodified order and the unmodified citations in AmCoal II. 41 FMSHRC at 388-89. The
Secretary’s argument that the Judge was suggesting that only citations preserved as written have
substantial enforcement value completely misreads the Judge’s analysis. S. Br. at 7.
10

The majority states that the Judge’s decision was based on a misunderstanding of the
law because he found that the admitted facts did not support the deletion of the S&S designation
and because he concluded that there was a reasonable likelihood of injury, which goes to the
‘gravity’ of the violation for consideration under the penalty factors in section 110(i) of the Mine
Act, 30 U.S.C. § 820(i). Slip op. at 8. Even if these rulings were deemed erroneous, it would
constitute harmless error, as the Judge’s decision sets forth other well supported grounds for his
conclusion the proposed settlement does not meet the American Coal standard. But the
majority’s approach is to reverse the decision below by identifying its disagreement with the
application of only one of the numerous criteria used to evaluate a settlement, and then
substituting its own judgement to reach its favored result without regard for whether there are
other grounds for denying the motion.

42 FMSHRC Page 587

Although our colleagues state that the Secretary “acted reasonably” in agreeing to the
settlement and that the settlement was a “fair compromise,” this is not dispositive. Slip op. at 11.
It is simply their personal view. A Judge may, within the Judge’s discretion, deny a settlement
motion that others might argue is reasonable or fair. But for the Commission to reverse the Judge
and approve the settlement, the bar is high – there must be a demonstration that no reasonable
Judge would have any grounds for denial under the numerous criteria to be considered in
application of the AmCoal standard for settlement review. Such a showing has not been made.
In conclusion, we would affirm the Judge’s denial of the settlement and remand the case.

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

42 FMSHRC Page 588

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

August 28, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. LAKE 2019-0149

HOPEDALE MINING, LLC
BEFORE: Rajkovich, Chairman; Jordan, Young, Althen, and Traynor, Commissioners
DECISION
BY: Rajkovich, Chairman; Young, and Althen, Commissioners
This civil penalty proceeding arises under the Federal Mine Safety and Act of 1977,
30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”). It involves the review of a Commission
Administrative Law Judge’s denial of a proposed settlement between the Secretary of Labor and
Hopedale Mining, LLC, regarding four citations, and the Judge’s subsequent convening of a
hearing rather than ruling on a motion seeking interlocutory review of the denial. 41 FMSHRC
322, 339 (Jun. 2019) (ALJ).
For the reasons that follow, we reverse the Judge’s denial of the motion seeking
interlocutory review, and vacate that portion of the Judge’s decision reaching the merits of the
citations. We further reverse the Judge’s denial of approval of the settlement motions and
approve the settlement.
I.
Factual and Procedural Background
At issue in the proposed settlement are four citations issued to Hopedale on December 4,
2018, at its underground coal mine located in Harrison County, Ohio. All four citations alleged a
significant and substantial (“S&S”)1 violation of 30 C.F.R. § 75.370(a)(1)2 for failure to follow
the mine’s ventilation plan. More specifically, Citation No. 8055975 alleged that the operator
failed to follow the ventilation plan in an area where the roof bolter was operating because an air
1

The S&S terminology is taken from section 104(d)(1) of the Mine Act, 30 U.S.C.
§ 814(d)(1), which distinguishes as more serious in nature any violation that “could significantly
and substantially contribute to the cause and effect of a . . . mine safety and health hazard.”
2

Section 75.370(a)(1) provides in part that, “[t]he operator shall develop and follow a
ventilation plan approved by the district manager.” 30 C.F.R. § 75.370(a)(1).

42 FMSHRC Page 589

reading behind a line curtain measured 2,792 cfm rather than the required measurement of 3,000
cfm. Citation No. 8055976 alleged that the operator failed to follow the ventilation plan because
the operator failed to drop a tail curtain in an intake entry while cutting into intake air. Citation
No. 8055977 alleged that only 19 of 30 water sprays on a continuous miner were operating,
while the ventilation plan requires a minimum of 27 of 30 sprays to be operating. Citation No.
8055978 alleged that the roof bolter’s vacuum measured only 10 inches of mercury (Hg), while
the ventilation plan requires 12 inches.
The Department of Labor’s Mine Safety and Health Administration (“MSHA”) proposed
civil penalties in the sum of $18,093 for the four violations. Hopedale contested the penalties,
and the matter was assigned to the Judge.
On March 25, 2019, the Secretary filed a motion to approve settlement stating that the
operator agreed to pay $3,339 of the $18,093 penalty proposal total. The penalties agreed to in
settlement were calculated in accordance with 30 C.F.R. Part 100 based on agreed upon reduced
levels of gravity for two citations and reduced negligence for all four citations. The parties
agreed that negligence of three of the four citations should be reduced from moderate to low, that
negligence of one of the four citations should be reduced from high to moderate, and that the
gravity of two citations should be reduced from highly likely to result in injury to reasonably
likely to result in injury.
That same day, the Judge sent an email to the parties stating that she could not approve
the settlement as submitted because of the seriousness of the violations and the operator’s history
of ventilation violations. Mot. for Recon., Ex. B. The Judge thereafter set the matter for hearing
on April 24, 2019, and ordered the parties to submit a list of witnesses and exhibits if the matter
did not settle. On April 5, 2019, the Secretary submitted an amended motion to approve
settlement, providing additional information with respect to each citation.
Five days later, on April 10, the Judge, sua sponte, issued a subpoena directing the
MSHA inspector who issued the citations to appear and testify at the hearing on April 24, and to
bring materials related to issuance of the citations. Subsequently, Hopedale and the Secretary
filed prehearing submissions in response to the Judge’s hearing notice, identically stating that
they did not intend to present witnesses during the hearing and that the proposed exhibits they
intended to introduce were joint stipulations.
On April 17, 2019, the Judge issued an order denying the amended motion for settlement.
On April 22, the Secretary filed a Motion for Reconsideration of Denial of Settlement
Agreements, or, alternatively, Motion to Revoke Subpoena, or alternatively, Motion to Certify
for Interlocutory Review and for Stay Pending Interlocutory Review.3
On April 24, the parties and Judge met at the hearing site. The Judge provided the parties
with an opportunity to argue about the appropriateness of the settlement and the pending motion
prior to the actual start of the hearing. Tr. 5-8, 19, 20-23. The Judge denied the motion for
3

Hopedale later joined the Secretary’s motion for reconsideration and alternative grounds

of relief.

42 FMSHRC Page 590

reconsideration, but did not rule on the motions pertaining to the subpoena or interlocutory
review. The Judge informed the parties that they were expected to call witnesses if they wanted
facts in the record and not stipulations. Tr. 27. The Secretary submitted revised stipulations into
the record, which were admitted. Tr. 15, 29, 33. Although the inspector was present, the Judge
did not ask him any questions. Tr. 39-40. Rather, the Judge dismissed the case on the basis that
the Secretary failed to meet his burden of proving the violations. Tr. 39-40.
On June 24, 2019, the Judge issued the decision, vacating the citations and dismissing the
case. First, the Judge concluded that prior to hearing, the settlement proposals were rejected
because they were not fair, reasonable, appropriate under the facts, or in furtherance of the public
interest. The Judge explained that the facts presented in the amended settlement motion and both
sets of the joint stipulations were insufficient to support the reductions in penalties proposed.
More specifically, the Judge found that the Secretary had failed to prove lower negligence as to
the four citations and a lowering of gravity as to two citations. The Judge explained that for each
citation, the parties presented insufficient information or “information that had little to no
bearing” on the designation of gravity or negligence for which they sought modification. 41
FMSHRC at 325.
Second, the Judge denied the Secretary’s motion for reconsideration and its alternative
grounds for relief.
Finally, the Judge considered the merits of the four citations. The Judge accepted the
agreed upon facts contained in the stipulations, including that the four violations had occurred.
However, the Judge concluded that the Secretary had failed to meet his burden of establishing all
four violations as alleged in the citations. She then vacated the citations, and dismissed the
proceeding.
The Secretary filed a petition for discretionary review, which the Commission granted.
The Secretary and Hopedale filed opening briefs contending that the Judge made four legal
errors. They contend that the Judge erroneously: (1) convened a hearing that denied the parties
the right to seek interlocutory review; (2) issued a subpoena to obtain evidence in connection
with settlement; (3) failed to apply or incorrectly applied the standard set forth in American Coal
Co., 38 FMSHRC 1972, 1976 (Aug. 2016) (“AmCoal I”); and (4) vacated the citations even
though the parties stipulated that the violations occurred.
For the reasons discussed below, we conclude that the Judge erred in convening a hearing
and failed to correctly apply the AmCoal I standard.

42 FMSHRC Page 591

II.
Disposition
A.

The Judge erred in convening a hearing rather than ruling on the motion seeking
interlocutory review.

The Commission reviews a Judge’s management of a case, including pre-trial rulings,
under an abuse of discretion standard. Marfork Coal Co., 29 FMSHRC 626, 634 (Aug. 2007).
We conclude that the Judge abused discretion in convening a hearing in this case before ruling
on the Secretary’s pending motion seeking interlocutory review.
The Judge’s error involves in part the timing of key pre-trial rulings under the
circumstances of this case. In the Judge’s April 17 decision denying the amended motion to
approve settlement, the Judge stated that the parties would be given one additional opportunity to
explain why the settlement should be approved, but that if the settlement were rejected, the
parties should move forward to present witnesses and exhibits.
Five days later, on April 22, the Secretary filed a motion requesting that the Judge
reconsider the denial of the settlement agreements. The Secretary’s motion alternatively
requested that the Judge revoke the subpoena issued to the inspector. As a final ground of
alternative relief, the Secretary requested that if the Judge did not reconsider the denial of
settlement or revoke the subpoena, the Judge should certify both matters for interlocutory
review. The Secretary requested that the proceedings be stayed pending interlocutory review.
The Judge did not reschedule the April 24 hearing in order to first rule on the Secretary’s
extant motion. Rather, consistent with the Judge’s statement in the April 17 order, the parties met
at the hearing site on April 24 and were given an opportunity to argue regarding the
appropriateness of the proposed settlement. Tr. 5-6. In addition, the Judge permitted the parties
an opportunity to argue the pending motion. Tr. 20-23.
Although the Judge again rejected the settlement during the proceedings on April 24, she
did not explicitly rule on the motion to revoke the subpoena or the motion seeking certification
for interlocutory review. Tr. 18-19, 34-35. Rather, the Judge disposed of the Secretary’s motion
in the June 24 decision, which also covered the post-hearing merits of the citations.
In the June 24 decision, the Judge denied the motion seeking interlocutory review on the
basis that it was moot since the matter had already proceeded to hearing. 41 FMSHRC at 329.
The Judge reasoned that, in any event, the questions of whether she correctly denied the
settlement motions and issued a subpoena to the inspector did not involve controlling questions
of law and that the questions were not “novel” or did not involve “unresolved questions of law.”
Id. at 330.
Commission Procedural Rule 76 describes the requirements for interlocutory review and
provides two alternative paths by which parties may gain interlocutory review. Under section
2700.76(a)(1)(i), the Judge may certify that the interlocutory ruling involves a controlling

42 FMSHRC Page 592

question of law and that immediate review will materially advance the final disposition of the
proceeding. Alternatively, under section 2700.76(a)(1)(ii), if the Judge denies a party’s motion
for certification of the interlocutory ruling, the party must file a petition for interlocutory review
within 30 days of the Judge’s denial of such motion for certification. 29 C.F.R.
§ 2700.76(a)(1)(i) & (ii).
The Judge erroneously foreclosed the opportunity for the parties to avail themselves of
the protections afforded by Rule 76(a). Even if the Judge determined implicitly that it was
appropriate to deny the motion for interlocutory review before proceeding to a hearing on the
merits, Procedural Rule 76(a)(1)(ii) requires that the parties be allowed the opportunity to appeal
that ruling to the Commission. The issue of whether the issues should be certified for
interlocutory review became moot only as a result of the Judge’s abuse of discretion in
convening the hearing rather than ruling on the motion and allowing the parties to seek
interlocutory review directly.
Immediate review of the question would have advanced the final disposition of this
proceeding because resolution of the question could have resulted in settlement. The
Commission has repeatedly granted interlocutory review of orders denying approval of
settlement motions. See, e.g., Solar Sources, LLC, 41 FMSHRC 594 (Sept. 2019); Am.
Aggregates of Michigan, Inc., 41 FMSHRC (Jun. 2019); Rockwell Mining, LLC, 40 FMSHRC
994 (Aug. 2018); American Coal Co., 40 FMSHRC 983 (Aug. 2018) (“AmCoal II”); Amax Lead
Co. of MO, 4 FMSHRC 975 (Jun. 1982). In such instances, the Commission concluded that the
standard set forth in section 2700.76 had been satisfied. See, e.g, Ohio Cty Coal Co., 40
FMSHRC 1096 (Aug. 2018).
The Judge’s decision raises further concerns, particularly regarding the longstanding
principle of party presentation. It is not appropriate for a Judge to assume a role as an
investigating attorney, prosecuting attorney, or defense counsel. This prohibition is underscored
by the unanimous decision of the U.S. Supreme Court in United States v. Sineneng-Smith, 140
S.Ct. 1575 (2020). Justice Ginsburg, in delivering the opinion of the Court, stated it very
succinctly:
In our adversarial system of adjudication, we follow the principle
of party presentation. As this Court stated in Greenlaw v. United
States, 554 U. S. 237 (2008), “in both civil and criminal cases, in
the first instance and on appeal . . ., we rely on the parties to frame
the issues for decision and assign to courts the role of neutral
arbiter of matters the parties present.” Id. at 243.
140 S.Ct. at 1579. In quoting Justice Scalia in Castro v. United States, 540 U. S. 375 (2003),
Justice Ginsburg went on to reiterate the “general rule” that:
[O]ur system “is designed around the premise that [parties
represented by competent counsel] know what is best for them, and
are responsible for advancing the facts and argument entitling them

42 FMSHRC Page 593

to relief.” Id., at 386 (Scalia, J., concurring in part and concurring
in judgment).
In short: “[C]ourts are essentially passive instruments of
government.” United States v. Samuels, 808 F. 2d 1298, 1301
(CA8 1987) (Arnold, J., concurring in denial of reh’g en banc)).
They “do not, or should not, sally forth each day looking for
wrongs to right. [They] wait for cases to come to [them], and when
[cases arise, courts] normally decide only questions presented by
the parties.” Ibid.
Sineneng-Smith, 140 S.Ct. at 1579.
Our dissenting colleagues, in complete disregard of the controlling law of SinenengSmith, would mandate Judges to take on the role of supervisory prosecutors. While our
colleagues may disagree with Sineneng-Smith, it is undoubtedly applicable to “our adversarial
system of adjudication” of Mine Act cases.
At the onset of these events, insistence of convening a substantive hearing without
affording the parties the opportunity to avail themselves of the process set forth in Procedural
Rule 76 was error. Accordingly, we reverse the Judge’s denial of the Secretary’s motion seeking
interlocutory review and vacate that portion of the Judge’s decision disposing of the merits of the
citations.
We need not discuss at length additional errors – the Judge’s issuance of a subpoena for
witness at the hearing and dismissal of violations admitted by the operator. Nevertheless, we
emphasize that Judges’ conduct must conform to the principle of party presentation as reiterated
in Sineneng-Smith. For the Judge to: schedule an almost immediate substantive hearing, deprive
the parties of their right to seek interlocutory review of the denial of the proffered settlement,
issue a subpoena for a witness attendance at the rushed hearing, and then cap it off by vacating
admitted violations, was the type of “radical transformation of the th[e] case” that the Supreme
Court rejected as judicial action that “goes well beyond the pale.” Sineneng-Smith, 140 S.Ct. at
1581-82. Likewise, we need not discuss at length the Judge’s clearly erroneous post-hearing
dismissal of citations with respect to which the operator had stipulated its liability.
Thus, we now consider the question presented in the Secretary’s petition for discretionary
review which should have been the subject of interlocutory review, that is, whether the Judge
erred in denying the proposed settlement.

42 FMSHRC Page 594

B.

The Judge erred in denying the settlement.

Section 110(k) of the Mine Act sets forth the Commission’s authority to approve
settlements of the Secretary’s proposed assessments once contested. It 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.
No penalty assessment which has become a final order of the
Commission shall be compromised, mitigated, or settled except
with the approval of the court.
30 U.S.C. § 820(k). The Commission has explained that “Congress authorized the Commission
to approve the settlement of contested penalties . . . ‘to ensure penalties serve as an effective
enforcement tool, prevent abuse, and preserve the public interest.’” AmCoal I, 38 FMSHRC at
1976 (quoting Black Beauty Coal Co., 34 FMSHRC 1856, 1862 (Aug. 2012)). In “effectuating
this Congressional mandate, the Commission and its Judges consider whether the settlement of a
proposed penalty is fair, reasonable, appropriate under the facts, and protects the public interest.”
AmCoal I, 38 FMSHRC at 1976.
The Commission and its Judges must have information sufficient to carry out this
responsibility. Commission Procedural Rule 31 requires that a motion to approve penalty
settlement must include, for each violation, the penalty proposed by the Secretary, the amount of
the penalty agreed to in settlement, and facts in support of the penalty agreed to by the parties. 29
C.F.R. § 2700.31(b)(1). The Commission has recognized that parties may submit factual support
consistent with the penalty criteria factors found in section 110(i) of the Mine Act, 30 U.S.C. §
820(i), as well as facts supporting settlement that fall outside of the section 110(i) factors.
AmCoal I, 38 FMSHRC at 1982.
During the review of a proposed settlement, the Judge is not expected to engage in fact
finding as she would post-hearing. See Solar Sources, 41 FMSHRC at 602 (“At the pre-hearing
settlement stage of a Commission proceeding, no evidence has been adduced into the record and
the Judge is not required to engage in fact finding.”). Judges are “expected to consider the facts
as alleged by the parties in their settlement, evaluate such information under the applicable
Commission standard for review, and determine whether the facts support the penalty agreed to
by the parties.” Id. Consideration of facts as alleged by the parties is entirely consistent with
Sineneng-Smith.
Contrary to our dissenting colleagues’ misrepresentation, our holding does not “instruct[]
our Judges to ignore whole sections of the record before them.” Slip op. at 22. It does not find
that “Judges may no longer probe gaps or inconsistencies in the explanation offered in support of
a settlement motion.” Id. Our holding simply follows our own precedents in a manner consistent
with the Supreme Court’s unanimous mandate regarding litigation.
We have held that at the pretrial settlement phase of litigation, Judges may not “assign[]
probative value to some facts without the benefit of an evidentiary hearing.” AmCoal II, 40

42 FMSHRC Page 595

FMSHRC at 991. Hence, any fact finding or legal conclusions at the settlement stage must be on
the facts stipulated to by the parties in support of their settlement motion. A Judge may request
additional facts, if the parties have not provided a sufficient basis for evaluation under the
standard we articulated in AmCoal I. The Judge, however, may not reject stipulated facts that do
not comport with the Judge’s personal view of what should or must have happened at the time of
the violation.
This settlement, like most, was submitted on facts stipulated by the parties. There was no
testimony to review. Under such circumstances, it is unnecessary and inappropriate to make a
credibility determination regarding the stipulated facts, directly or indirectly, unless the record
before the Judge positively demonstrated that a stipulated fact is not correct.4
In prior cases, the Commission has applied an abuse of discretion standard in reviewing
the denial of a settlement. Sec’y of Labor on behalf of Shemwell v. Armstrong Coal Co., 36
FMSHRC 1097, 1101 (May 2014). Notably, however, in a settlement, the Judge does not weigh
conflicting evidence or make credibility determinations. The “facts” are the representations made
by the parties in the settlement motion. The issue is whether, given the representations and
stipulations of the parties, the settlement meets the Commission’s standard for a settlement.
Thus, there is no element of support for findings of fact based upon substantial evidence.
If taking those representations into account, the settlement meets the standard we
articulated for approval in AmCoal I (fair, reasonable, etc.), the settlement should be approved.
Although the Commission gives weight to the experience gained by ALJs through the handling
of many settlements, the denial of a settlement that comports with the standard we have
established is an abuse of discretion, and the Commission may exercise its discretion to accept
the settlement. The facts of the settlement come to the Commission in exactly the same form and
relevance as before the Judge.
In sum, it is an abuse of discretion to deny a settlement when agreed-upon or stipulated
facts satisfy the standard for approval. We must review the facts and the conclusions the Judge
draws from those facts against an objective standard, because one of the elements of the standard
requires the settlement to be “reasonable.”5 Under the Mine Act, it is the responsibility of the
Commission to be the final authority of the compliance of a settlement with the standards we
have established.
4

For example, the parties’ Joint Stipulation 8(f) states, “The section foreman was at the
continuous miner as it cut through the E to F Crosscut, but was unaware the ventilation curtain
had not been adjusted per the requirements of the plan prior to cutting through.” The Decision,
on this point, and without examination of actual witness testimony, states, “The argument that
the foreman was unaware that the line curtain had not been advanced is wholly unpersuasive and
does not comport with the reasonably prudent miner standard of care.” 41 FMSHRC at 335.
5

Consistent with this, we previously recognized that the public interest inquiry is not to
determine “whether the resulting array of rights and liabilities ‘is one that will best serve
society,’” but only to show that the resulting “settlement is ‘within the reaches of the public
interest.’” Armstrong, 36 FMSHRC at 1103-04 (citations omitted) (emphasis in original).

42 FMSHRC Page 596

Although the Judge correctly articulated the AmCoal I standard for reviewing proposed
settlements, the denial of the settlement motions was based on a misunderstanding of the law and
a misapplication of AmCoal I and its progeny.
The Judge misapprehended the distinction between the type of factual support necessary
to support penalty assessment after a hearing with the type of factual support that would satisfy
the AmCoal standard before a hearing and before any evidence has been adduced. That is, the
Judge erred by requiring the parties to provide evidence to support findings that would be
appropriate after a hearing, rather than during a settlement review.
Indeed, the distinction between how factual support should be handled by the Judge
during settlement review versus how a penalty is set after a hearing is set forth in the
Commission’s procedural rules. During a Judge’s consideration of reduced penalties in
settlement, a Judge need not make factual findings with respect to each of the section 110(i)
factors.6 AmCoal I, 38 FMSHRC at 1982; AmCoal II, 40 FMSHRC at 991. Rather, Commission
Procedural Rule 31(g) provides that a Judge’s decision approving settlement need only “set forth
the reasons for approval and shall be supported by the record.” 29 C.F.R. § 2700.31(g). In
contrast, Commission Procedural Rule 30(a) provides that in assessing a penalty after a hearing,
a Judge “shall determine the amount of penalty in accordance with the six statutory criteria
contained in section 110(i) of the Act,” and that the decision “shall contain findings of fact and
conclusions of law on each of the statutory criteria.” 29 C.F.R. § 2700.30(a).
In the proposed settlement, the parties provided facts supported by the record with respect
to the four ventilation plan violations supporting one-gradient reductions in gravity regarding
two of the citations and in negligence regarding all four. In addition, in response to the Judge’s
statement that the operator had a “significant” history of violations, the parties provided specific
facts related to the operator’s ventilation plan violation history. Tr. 30-32; Jt. Ex. 2 at ¶¶ 4, 7(a),
8(a), 9(a), 10(a).
Although Hopedale agreed to accept the fact of violation as to all four citations, the
parties provided facts supporting the penalty reduction that showed partial compliance with the
relevant portions of the ventilation plan. With respect to Citation No. 8055975, the 2,792 cfm air
reading taken by the inspector behind the line curtain was 93% of the level required by the plan
(3,000 cfm). Jt. Ex. 2 at ¶ 7(f). The parties agreed that the section supervisor’s air reading, which
was taken just prior to the inspection, showed over 3,200 cfm of air behind the line curtain, and
that the inspector’s notes confirmed that the foreman stated he had over 3,000 cfm prior to roof
bolters installing roof bolts. Id. at ¶¶ 7(e), (g).
With respect to Citation No. 8055977, approximately two-thirds of the water sprays on
the continuous miner were functional, and the inspector’s contemporaneous notes reflected that
6

In fact, the Commission amended Rule 31 to delete a requirement that decisions
approving settlement must include a discussion of the section 110(i) factors in order “to enhance
the flexibility of the judges to approve settlements.” AmCoal II, 40 FMSHRC at 991 & n.12
(citations omitted).

42 FMSHRC Page 597

the water sprays had been checked after the miner completed the third cut of the shift. Id. at ¶
9(g).
With respect to Citation No. 8055978, the parties stated that the inspector’s notes
reflected that the roof bolter parameters had been in compliance at the start of the shift, and that
the roof bolter’s vacuum later measured 10 inches of the 12 inches of mercury required under the
ventilation plan. Id. at ¶ 10(e); Amended Set. Mot. at 5 ¶ 7(d).
Related to the level of negligence, Hopedale also provided facts demonstrating that the
violative conditions were not obvious or readily known to the operator. Jt. Ex. 2 at ¶ 7(h);
Amended Set. Mot. at 3-5 ¶¶ 7(a), (b), (c), (d). The Secretary agreed to accept such facts in
mitigation of the penalties. Amended Set. Mot. at 5-6 ¶ 8.
As to Citation No. 8055975, the parties agreed that “[a]s the continuous miner advances
through the section, it moves further away from the source of ventilation, potentially resulting in
an air volume reading lower than what is required by the ventilation plan, but at a variation in
volume not readily discernable to a miner.” Jt. Ex. 2 at ¶ 7(h). With respect to Citation No.
8055977, Hopedale provided that the location of the plugged sprays made it difficult for the
miner operator to recognize that the sprays were plugged, and that dust was not observed
“rolling” over the miner operator or shuttle car operators.7 Amended Set. Mot. at 4 ¶ 7(c). As to
Citation No. 8055976, “the Secretary agree[d] the section foreman was at the continuous miner
as it cut through from E to F but was unaware the ventilation curtain had not been adjusted per
the requirements of the plan prior to cutting through.” Id. at 3 ¶ 7(b). Similarly, Hopedale
contended with respect to Citation No. 8055978, that the difference in 10 inches and 12 inches of
mercury was not easily detected by the roof bolter operator. Id. at 5 ¶ 7(d).
Although Hopedale agreed to accept the S&S designations for all four violations, it
provided facts related to a lowering of gravity as to Citation Nos. 8055976 and 8055977, and the
Secretary agreed to accept such facts in mitigation of the penalties. The parties agreed that the
inspector’s contemporaneous notes reflected that the respirable dust parameters were in
compliance at the start of the shift. Jt. Ex. 2 at ¶ 9(g). Hopedale provided results of Continuous
Personal Dust Monitoring samples that were taken from the shuttle car operators on the section
at the time the citations were issued that showed readings below the 1.5 mg standard. Amended
Set. Mot. at 3 ¶¶ 7(b), (c). In addition, the Secretary stipulated that he was “aware of no evidence
that respirable dust exposures experienced by other miners, including the roof bolters and the
continuous miner operator, exceeded the standard.” Jt. Ex. 2 at ¶ 8(g).
In concluding that the Secretary had failed to justify the lowering of negligence as to the
four citations and the lowering of gravity for two of those citations, the Judge erred in applying
an overly-stringent standard. The Judge erroneously considered the proposed penalties in
settlement against the section 110(i) factors in a similar manner that would be required after a
hearing. For instance, in the Judge’s April 17 settlement denial, the Judge noted that facts
showing no violation of the dust standard with regard to the shuttle car operators did not support
7

“Rolling” of dust is an observation that can be used to evaluate whether the water sprays
are effectively controlling dust. Jt. Ex. 1 at ¶ 9(f).

42 FMSHRC Page 598

the reduction because “the continuous miner operator and the roof bolter do not have the same
exposure as shuttle car operators.” Unpublished Order at 3 (April 17, 2019). In the portion of the
June decision considering the merits of the citations after hearing, the Judge similarly reasoned
that the likelihood of injury for Citation No. 8055976 should not be modified based upon the
shuttle car operators’ samples because shuttle car operators do not receive the same or similar
dust exposure as the continuous miner operators. 41 FMSHRC at 335.
The Judge also concluded that the levels of negligence should not be reduced in
settlement because a foreman had been in the area at the time that the citations were issued. 41
FMSHRC at 328. The Judge appears to make a credibility determination that the foreman’s lack
of knowledge was not credible, but there is no basis to make such a determination because there
is no record to support such speculation.
Moreover, the Commission has considered the absence of a foreman as a factor
supporting a reduced penalty in settlement. Ohio Cty Coal, 40 FMSHRC at 1098-99 & n.3. The
Commission’s recognition that the absence of a foreman supports a penalty reduction in
settlement does not necessarily lead to the conclusion that the presence of a foreman prohibits
the reduction of penalty in settlement, particularly under the facts provided by Hopedale and the
Secretary to support the penalties agreed to in settlement.
Similarly, the Judge erred by essentially requiring the parties to prove a particular level of
negligence in the context of settlement, much as would be required after a hearing. Fact-finding
against various legal standards of negligence and gravity is not appropriate during settlement
review when no evidence has been adduced, although such fact-finding is required following a
hearing on the merits. Rather, during a settlement review, a Judge need only review the proposed
penalty reduction to see if it is “fair, reasonable, appropriate under the facts, and protects the
public interest.” AmCoal I, 38 FMSHRC at 1976.
Furthermore, the Judge made a fundamental error in the application of AmCoal II in
stating that the citations would retain their enforcement value only if Hopedale had accepted
them as they had been written at issuance. 41 FMSHRC at 327. Under the Judge’s faulty
reasoning, any proposed penalty reductions modified in accordance with Part 100 during
settlement would have no enforcement value.
Giving “due consideration to the entirety of the proposed settlement package, including
both its monetary and nonmonetary aspects,” we conclude that the non-monetary aspect of the
proposed settlement, that is, the enforcement value of the citations, is significant. AmCoal II, 40
FMSHRC at 989 (citations omitted). Hopedale agreed to accept the fact of violation as to all four
citations, that all four violations were S&S, and that all four violations were a result of the
operator’s negligence. The important nature and quality of the violations has been preserved for
enforcement purposes.
As the Commission recognized in AmCoal I, “under the Mine Act, violations accepted by
an operator in a settlement agreement may be considered as part of the operator’s history of
violations in the assessment of future civil penalty assessments.” 38 FMSHRC at 1984 (citation

42 FMSHRC Page 599

omitted). Thus, the four citations have enforcement value in that they may be considered as part
of Hopedale’s history of violations in the calculation of civil penalties for future violations.
In such future assessments, Hopedale may not benefit from the reduced penalties it paid
in settlement. The Commission has explained that the amount of penalties assessed in the context
of a settlement may not be used to arrive at penalties assessed in a decision on the merits after a
hearing. Newmont USA, Ltd., 37 FMSHRC 499, 506 (Mar. 2015).8
The Judge also erred to the extent she concluded that the settlement should not be
approved because of the operator’s history of violations. In the March 25 denial, the Judge noted
in part that the operator had a “significant history of ignoring the ventilation requirements.” Mot.
for Recon., Ex. B. The Judge later based the April 17 rejection of the settlement in part on “the
operator’s significant history of similar violations for failure to adhere to ventilation plan
requirements.” Unpublished Order at 2 (Apr. 17, 2019). The Judge observed that the parties had
failed to address that history and attached the operator’s two-year history of violations to the
order. Id. at 2-3. The Judge later incorporated the earlier decisions in the June 24 decision (41
FMSHRC at 324), but did not appear to address the operator’s history of violations in the
Judge’s June evaluation of the settlement.9
As previously noted, primary authority to approve settlements of contested proposed
assessments is vested by Congress in the Commission. 30 U.S.C. § 820(k); AmCoal I, 38
FMSHRC at 1976. While such authority may be delegated to the Judges, the Commissioners
retain such full authority to find a proposed settlement is otherwise fair, reasonable, appropriate
under the facts, and protects the public interest.
Contrary to the Judge’s determination, the facts provided by the parties in regard to the
operator’s violation history supported the penalty reduction agreed to in settlement. The parties
submitted facts that: (1) in the two years prior to the instant citations, the operator was cited for
violations of 30 C.F.R. § 75.370(a)(1) on 10 occasions, seven of which were not classified as
S&S; and (2) during calendar year 2018, only four 30 C.F.R. § 75.370(a)(1) violations were
issued prior to the subject citations. Jt. Ex. 2 at ¶ 4. The parties also provided information
regarding how often the Hopedale Mine had been cited for the violations that were cited in the
subject citations during the prior two years. They stipulated: (1) Citation No. 8055975 - only one
previous violation (Aug. 28, 2018); (2) Citation No. 8055976 – no previous violations; (3)
Citation No. 8055977 – two previous violations (on April 24, 2017 and on Dec. 18, 2017); and
(4) Citation No. 8055978 - one previous violation (Nov. 13, 2017). Id. at 2-7 at ¶¶ 7(a), 8(a),
9(a), 10(a). These four citations, and this compliance history, are wholly inconsistent with our
8

Moreover, since all four violations are S&S, they could be relevant for pattern of
violations consideration. Brody Mining, LLC, 36 FMSHRC 2027, 2038 (Aug. 2014) (holding
that section 104(e) of the Mine Act encompasses S&S violations including non-final orders).
9

Rather, it appears that the Judge considered the operator’s history of violations in
reviewing the merits of Citation No. 8055975. 41 FMSHRC at 333. We have vacated that portion
of the Judge’s decision reaching the merits of the citations.

42 FMSHRC Page 600

dissenting colleagues’ characterization of the operator as “cavalier – almost indifferent – to the
need to comply with these important safety standards.” Slip op. at 15.
In sum, the Judge misapplied our precedents governing settlements. The Judge
erroneously reviewed the facts submitted by the parties to support settlement against the more
stringent standard that applies after a hearing on the merits. The Judge further failed to reconcile
the Judge’s earlier holding that the operator’s history of violations supported rejection of the
settlement with additional facts submitted by the parties that supported the settlement. Finally,
the Judge erred by concluding that the violations lacked enforcement value because they had not
been accepted as written.10 41 FMSHRC at 327.
The Commission and its Judges may not look behind the Secretary’s decision to settle or
behind the decision to choose a particular amount for settlement. See AmCoal I, 38 FMSHRC at
1980 (“The Commission does not review the Secretary’s decision to settle. Rather, the
Commission reviews the proposed reduction of civil penalties in settlements.”) (emphasis in
original); Tazco, Inc., 3 FMSHRC 1895, 1897 (Aug. 1981) (noting that the Commission’s and its
Judges powers are limited by the Mine Act). Instead, we review the proposed penalty reductions
in settlement with the facts submitted by the parties against the AmCoal I standard.
Upon reviewing the facts submitted by the parties in the amended motion to approve
settlement and amended joint stipulations, we conclude that the proposed reduction of penalties
is fair, reasonable, appropriate under the facts, and protects the public interest. Because the
parties presented sufficient facts to support the reduced penalties agreed to in settlement, we
conclude that remand is unnecessary. See, e.g., Solar Sources, 41 FMSHRC at 605.11
Our dissenting colleagues cite, with apparent approval, that 99.96% of all settlement
agreements were granted in the years 2011 to 2016 – that is, about 1 in approximately every
2,200 motions. Slip op. at 16 n.2. Nevertheless, their dissent would make one think that the
exercise of our discretion to grant the settlement places the settlement process on the verge of
collapse.
In fact, however, the rarity of disapproval suggests that the defects of a properly-rejected
settlement should be self-evident, and easily explained. The Judge’s role is as an adjudicator not
as an investigator or as a prosecutor. The rejection in this case was contrary to stipulated facts,
10

No case would ever be settled on such a literal application of “as written” because
accepting all of the Secretary’s findings and conclusions would render a reduction in the penalty
untenable. Agreeing in toto to an opponent’s case in chief is not a settlement but a capitulation.
11

Commissioner Young notes that, in contrast to our decision in American Aggregates of
Michigan, Inc., Docket No. LAKE 2018-0340, issued on the same day as our decision in this
case, the Judge here did not fail to consider entirely an evidentiary argument made by the
operator, which arguably could have been the subject of further questioning on remand. The
settlement in this case was a commonplace proposal to reduce negligence and gravity, the usual
means through which the parties compromise similarly unremarkable disputes, and remand in
this case would be unproductive.

42 FMSHRC Page 601

mischaracterized the operator’s compliance history, and failed to give weight to the considerable
non-monetary value preserved by the settlement. The rejection therefore does not conform to the
standards we have established for the evaluation of settlements, consistent with our precedents
and the directives of Congress.
III.
Conclusion
For the reasons set forth above, we reverse the Judge’s denial of the motion seeking
interlocutory review, and vacate that portion of the Judge’s decision reaching the merits of the
citations. We reverse the Judge’s denial of the settlement motions and approve the settlement.

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

/s/ Michael G. Young
Michael G. Young, Commissioner

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

42 FMSHRC Page 602

Commissioners Jordan and Traynor concurring in part and dissenting in part:
I.
Introduction
This case involves serious violations of ventilation regulations that could lead to dust
exposure. The inspector arrived at the mine and saw that at every phase of mining there was
something wrong. When the four violations are reviewed together, it appears that the operator
was cavalier – almost indifferent – to the need to comply with these important safety standards.
Almost the entire mining cycle was affected – the curtain, the continuous miner, the roof bolter,
the air flow.
The original penalty assessment was $18,093. The proposed settlement amount was
$3,339. As the Judge noted, this was a major reduction of almost 81.5%.
It is significant that the foreman was present on the section when these violations
occurred. It was his job to make sure that the curtain was moved properly, and that the water
sprays on the continuous miner were properly maintained. It was certainly not mitigating to
allege that the foreman simply was not aware of some of these violations. A “should have
known” analysis is reasonable here, and not inconsistent with our caselaw examining the section
110(i) negligence criterion. And the Judge’s application of that analysis is not outside the
boundaries of her wide discretion. 41 FMSHRC 322, 328 (Jun. 2019) (ALJ).
The Judge concluded that the proposed penalty amount was not an adequate deterrent.
She reviewed the facts provided by the parties and concluded that they had not persuaded her to
grant the motion.
This is not an abuse of discretion – one must keep in mind that this is an extremely
deferential standard. The majority’s focus on deciding for themselves whether there is enough
there to approve the settlement is far afield from our precedents emphasizing that our Judges
have wide discretion that may not be reversed by a Commission that simply wishes to substitute
its own preferred outcome. This is not consistent with the deference owed a Judge’s exercise of
discretionary judgment.
In short, the Judge’s denial of the motion is supported by the factual record and is the
product of a reasonable determination, a determination made within the boundaries of her
discretion. Thus, her denial should be affirmed.
The majority decision ends meaningful substantive review of agreements between the
government and mine operators to reduce the penalties the government originally proposes in
connection with mine safety violations, enabling nearly frictionless and potentially unwarranted
reduction of such penalties. The Commission has in multiple decisions recognized that this is not
what Congress intended. Our precedents recognize that under the statutory enforcement
framework preceding the 1977 Mine Act,1 the government’s compromise of proposed penalties
without oversight or transparency had seriously undermined safety enforcement. And that
1

The Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1976).

42 FMSHRC Page 603

Congress responded in the Mine Act of 1977 by requiring the Commission to review and, only if
warranted, approve the Secretary’s compromise of a proposed penalty in an agreement to settle
an operator’s contest of a citation. Yet today, the majority, substituting its view of the case for
that of the Judge, finds that she erred by undertaking a meaningful evaluation of the parties’
contention that the penalty reduction is justified.
The Commission and its Judges have for decades fulfilled their settlement review
responsibility by requiring the Secretary to publicly demonstrate that the penalty reductions are
warranted by addressing in his settlement motions, among other things, the amount of the
Secretary’s original penalty proposal and those facts justifying Commission approval of a lesser
penalty. Our Judges have then exercised wide discretion, referencing the section 110(i) penalty
criteria and other factors, to determine whether the compromising parties had provided in their
motion a full set of accurate facts and information sufficient to publicly demonstrate that the
reduced penalty is “fair, reasonable, appropriate under the facts, and protects the public interest.”
American Coal Co., 38 FMSHRC 1972, 1976 (Aug. 2016) (“AmCoal I”). See also 40 FMSHRC
983, 984 (Aug. 2018) (“AmCoal II”).
The majority’s decision in this case cuts the heart out of unanimous decisions in the
American Coal case and in other prior precedents governing transparent settlement approval,
making major changes to this area of law.2 First, the majority strips our Judges of the power and
responsibility to look beyond the self-serving presentation of select facts and legal conclusions in
the parties’ settlement motion to determine in their own discretion whether the alleged facts and
proffered conclusions, examined in light of the record as a whole, demonstrate the proposed
penalty reductions are actually “fair, reasonable, appropriate under the facts, and protects the
public interest.” AmCoal I, 38 FMSHRC at 1976. In a sharp departure from settled precedent, the
majority prohibits our Judges from assessing whether a penalty reduction the parties attempt to
justify by reference to agreed upon modifications to the contested citations is warranted by
application of section 110(i) and other factors we have recognized as relevant to our penalty
assessment role.3

2

The majority provides no policy reason or explanation for making such radical breaks
with our precedent addressing our obligation to review penalty reductions, such as our decisions
in the American Coal Co. case and in Black Beauty Coal Co., 34 FMSHRC 1856, 1870 (Aug.
2012) (requiring the Secretary to provide such factual support to demonstrate the applicability of
the penalty criteria as they relate to the penalties contained in the settlement proposal presented
to her for review). This is an especially glaring omission in light of the fact our judges applying
this precedent are able to approve 99.96% of settlement motions submitted for their review. See
AmCoal I, 38 FMSHRC at 1977 n.7 (noting that in a five-year period from approximately 2011
to 2016, Commission Judges approved 38,501 settlements and denied only 17).
3

Factors we have recognized that a Judge may rely upon to determine in his or her
discretion whether the parties’ motion demonstrates a penalty reduction is “warranted” include,
for example: the future enforcement value of accepting violations as written, AmCoal II, 40
FMSHRC at 989; the possibility of criminal penalties, Aracoma Coal Co., 32 FMSHRC 1639,
(continued…)

42 FMSHRC Page 604

Second, though they do so only implicitly, the majority reviews the Judge’s decision on
each of the AmCoal elements – fairness, reasonableness, appropriateness to the facts, and the
public interest – under a de novo rather than an abuse of discretion standard. This break from
precedent undertakes a nearly total elimination of our Judges’ discretion to determine whether a
penalty reduction is warranted. And does so in a case where no arguments against such a
significant change were litigated, the parties’ positions were fully aligned and no party before the
Commission presented argument in opposition. In this non-adversarial proceeding, both sides
sought the same outcome and the majority delivered it, along with the apparent reversal of the
foundational precedents applying section 110(k) of the Mine Act, 30 U.S.C. § 820(k).4
While we concur that the Judge erred in vacating the citations, we disagree with the
majority’s decision to usurp the Judge’s discretion by granting the motion to approve settlement.5
We conclude that the Judge’s rationale for rejecting the parties’ proposed settlement is consistent
with our well settled and deferential standard of review. Accordingly, we would remand this
proceeding to the Judge, with instructions to the parties to reconsider their settlement agreement
and to file a new motion. If the parties do not agree to settle, and they continue to stipulate to the
violations, we would have the Judge assess a penalty (which could necessitate a hearing).
Below, we recount the origin and development of the legal standard our Judges apply for
settlement approval decisions and our own standard for review of the same. Then, we highlight
how much the majority’s decision departs from these precedents, before concluding with an
application of those precedents to the facts of this case.

3

(…continued)

1641 (Dec. 2010); settlement provisions requiring that the operator implement personnel changes
or training improvements, AmCoal I, 38 FMSHRC at 1982; and deterrence, Black Beauty, 34
FMSHRC at 1864-65.
4

Commissioner Traynor separately observes that in the AmCoal cases, representatives of
the regulated community participated as intervenors and a member of Congress as amicus curiae
in opposition to the Secretary and another operator’s arguments in favor of curtailing the
Commission’s settlement review authority. In similar circumstances, appellate courts on
occasion take steps to ensure adversarial presentation. See, e.g., Beckles v. United States, 137 S.
Ct. 886, 892 (2017) (“Because the United States, as respondent, agrees with petitioner that the
Guidelines are subject to vagueness challenges, the Court appointed [an attorney] as amicus
curiae to argue the contrary position.”). Unfortunately, the Commission in this case did not
receive arguments on “the contrary position.” And neither party will appeal the Commission’s
approval of their settlement motion. Thus, the departures from precedent in this case are fully
insulated from appellate review.
5

We concur with the majority’s conclusion that the Judge abused her discretion when she
convened a hearing without first ruling on the Secretary’s pending motion for interlocutory
review that was filed pursuant to Commission Procedural Rule 76, 29 C.F.R. § 2700.76.
However, as we are now providing appellate review, this issue is now moot.

42 FMSHRC Page 605

II.
Discussion
A.

The Commission and its Judges’ Settlement Review Obligation

Once the penalties which the government proposes for mine safety violations have been
contested before the Commission, the Mine Act does not permit the government and mine
operators to settle or compromise such penalties unless and until they obtain Commission
approval. Section 110(k) of the Act provides:
No proposed penalty which has been contested before the
Commission under section 815(a) of this title shall be
compromised, mitigated, or settled except with the approval of the
Commission. No penalty assessment which has become a final
order of the Commission shall be compromised, mitigated, or
settled except with the approval of the court.
30 U.S.C. § 820(k). Some of the earliest cases in which the Commission exercised its settlement
approval authority under section 110(k) recognized that “[t]he judges’ front line oversight of the
settlement process is an adjudicative function that necessarily involves wide discretion.” Knox
Cty. Stone Co., 3 FMSHRC 2478, 2479 (1981) (emphasis added). These early cases emphasized
the degree to which we must defer to the reasonable exercise of our Judges’ discretion to accept
or reject proposed penalty settlements. See, e.g., Pontiki Coal Corp., 8 FMSHRC 668, 675 (May
1986) (“the Commission has stated repeatedly, if a judge disagrees with a stipulated penalty
amount or believes that any questionable matters bearing on the violation or appropriate penalty
amount need to be clarified through trial, he is free to reject the settlement and direct the matter
for hearing”).
Our precedents have continued to hold that our Judges’ wide discretion is a fundamental
aspect of our settlement review under section 110(k), observing more recently:
[The] statutory language [in the Mine Act] contains no explicit
restrictions on what a Commission Judge may consider when
reviewing a settlement proposal. Thus, Congress provided a broad
mandate to the Commission (and its Judges), charging it with
reviewing and approving all settlements of penalty cases pending
before it and imposing no explicit limits on what should be
considered in this review.
Black Beauty Coal Co., 34 FMSHRC at 1865 (emphasis added).
In Black Beauty, the Commission affirmed that section 110(k) and the Mine Act’s
legislative history make clear that Congress requires the Commission to scrutinize the settlement
of contested penalties “[i]n order to ensure penalties serve as an effective enforcement tool,
prevent abuse, and preserve the public interest.” Id. at 1862 (citations omitted). In order to carry
out that function, the Commission in Black Beauty expressly rejected the Secretary’s contention
that “it has no authority to review the underlying modification of the citation.” Id. at 1860.
Observing that under section 110(i) of the Act, only the Commission has authority to “assess all

42 FMSHRC Page 606

civil penalties provided in this Act,” id. at 1862, the Commission held that “if a Judge’s approval
or rejection of a settlement is ‘fully supported’ by the record, consistent with the [section 110(i)]
statutory penalty criteria, and not otherwise improper, it will not be disturbed, but . . . abuses of
discretion or plain errors are subject to reversal.” Id. at 1864.6
In addition to holding that a Judge must review the underlying modification of a citation
offered as justification for a penalty reduction to ensure, inter alia, that it is consistent with the
110(i) penalty criteria, the Commission in Black Beauty was also very clear that a Judge had
wide discretion to require information from the parties demonstrating the same, holding that its
Judges are “clearly authorized by the Mine Act to review a proposed settlement of a contested
penalty and to require the parties to submit the factual support necessary for that review.” Id. at
1860. Thus, the Commission in Black Beauty concluded, “[t]he Judge did not abuse her
discretion in requiring the Secretary to provide further factual support to demonstrate the penalty
criteria as they relate to the subject penalties [and] . . . [o]n remand, the Judge shall take such
further evidence as she reasonably requires to consider the six statutory criteria [in section
110(i)] in reviewing the motions for settlement.” Id. at 1864, 1869 (emphasis added).7
In carrying out the Congressional mandate to oversee and ensure transparent justification
of penalty settlements, the Commission and its Judges regularly request that the parties provide
additional information – e.g., explanations as to how the facts in the record, in light of applicable
caselaw, justify the penalty reduction proposed in the motion. Often, depending on how the
parties attempt to justify their settlement, such information pertains to the statutory criteria for
assessment of civil penalties set forth in section 110(i). See, e.g., Knox County Stone Co., 3
FMSHRC at 2480 (stating that “the judge issued to the parties a notice of hearing and pretrial
order requiring in two phased responses extensive information relevant to the six penalty criteria
specified in section 110(i) of the Mine Act”).
After issuing Black Beauty, the Commission in subsequent cases faithfully applied its
ruling to require Judges to determine that information provided by the parties in light of the
record as a whole justifies the proposed reduction in penalty in accordance with the section
110(i) penalty criteria. See Big Ridge, Inc., 38 FMSHRC 1348, 1349 (June 2016) (“In light of the
factual justifications provided by the parties, we determine that the penalty is appropriate under
the criteria set forth in section 110(i) of the Mine Act . . . [and] further find that the terms of the
settlement are supported by the record, in accordance with Commission case law.”); see also
UMWA, on behalf of Franks v. Emerald Coal Res., 38 FMSHRC 935, 938 (May 2016) (finding
6

The six section 110(i) statutory criteria by which all penalties must be assessed are “the
operator’s history of previous violations, the appropriateness of such penalty to the size of the
business of the operator charged, whether the operator was negligent, the effect on the operator’s
ability to continue in business, the gravity of the violation, and the demonstrated good faith of
the person charged in attempting to achieve rapid compliance after notification of a violation.”
30 U.S.C. § 820(i).
7

Though the majority decision is directly contrary to this, a central and unanimous
holding in Black Beauty, the majority does not express intent to overrule it either in whole or in
part, or identify subsequent authority that does so.

42 FMSHRC Page 607

that the information provided demonstrates that a reduction in penalty is appropriate under the
criteria in section 110(i)).
In 2016, the Secretary chose American Coal “to be the ‘test case’ for advancing his
position that the Commission’s authority to review settlements of contested penalties under
Section 110(k)… is much more limited than that described in Black Beauty Coal Co.” AmCoal I,
38 FMSHRC at 1972-73. We issued two unanimous decisions in the American Coal Co. case
that comprehensively addressed the substance of our Judges’ responsibility to obtain sufficient
information to decide whether a proposed penalty reduction is warranted and to ensure that the
penalty reduction is transparent. To prompt the test case, the Secretary attached to its motion to
approve settlement in AmCoal I (and subsequently in other cases) boilerplate referencing a
unilateral “professional judgment” and a desire to conserve “resources that the Secretary would
need to expend in going through a trial” in lieu of the substantive factual support traditionally
provided to justify a penalty reduction.8 Id. at 1973-74. The Secretary took the position that
section 110(k) review is perfunctory and limited to “whether the proposed settlement (1) is
legally sound, (2) is clear, (3) resolves the claims in the penalty petition, and (4) is not tainted by
improper collusion or corruption.” Id. at 1983. The operator agreed.
The Commission rejected the Secretary and operator’s position, concluding adoption of
their proposed “standard would effectively render section 110(k) meaningless,” id. at 1983, and
“is completely inconsistent with the need for transparency that Section 110(k) was enacted to
address.” Id. at 1984. The Commission, in a unanimous opinion, elaborated on this basis for our
decision by reciting key excerpts of the legislative history of section 110(k), as it did in its Black
Beauty decision, including Congress’s finding that under the predecessor to the Mine Act, “to a
great extent the compromising of assessed penalties [did] not come under public scrutiny” and
that “even after a petition for civil penalty had been filed, settlement efforts between the operator
and Solicitor [were] not on the record, and a settlement need not be approved by the
Administrative Law Judge.” Id. at 1975-76 (quoting Legis. Hist. at 632-33).
The Commission in AmCoal I reaffirmed Congress’s clear explanation that “‘[b]y
imposing [the] requirements’ of section 110(k), it ‘intend[ed] to assure that the abuses involved
in the unwarranted lowering of penalties as a result of off-the-record negotiations are avoided.’”
Id. at 1976. (emphasis added in AmCoal I). It also affirmed “the purpose of civil penalties, [that
is,] convincing operators to comply with the Act’s requirements, is best served when the process
by which these penalties are assessed and collected is carried out in public,” where miners,
Congress, and other interested parties, “can fully observe the process.” Id.
The Congressional transparency mandate has always meant the Judge’s decision must
include a substantive explanation as to how the penalty reduction submitted for approval is (or is
8

In recognition of the legislative history of the Mine Act, we have held that “for the
purpose of encouraging operator compliance with the Act's requirements, the need to save
litigation and collection expenses should play no role in determining settlement amounts.” Black
Beauty, 34 FMSHRC at 1866 (quoting S. Rep. No. 95-181, at 41-45 (1977), reprinted in Senate
Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal Mine Safety and
Health Act of 1977, at 629-33 (1978) (“Legis. Hist.”).

42 FMSHRC Page 608

not) warranted by the facts and legal contentions the parties claim as support for their motion.
See, e.g., Co-Op Mining Co., 2 FMSHRC 3475, 3475 (Dec. 1980) (“[S]ettlement should not have
been approved [where t]he parties’ stipulation shows that the alleged violation did not occur.”);
Madison Branch Mgmt., 17 FMSHRC 859, 864 (Jun. 1995) (“[T]he Commission will not disturb
a Judge’s approval or rejection of a settlement if it is supported by the record, is consistent with
the six statutory criteria specified in section 110(i) of the Act for the assessment of civil
penalties, and is not otherwise improper.”). Referencing its holding in Black Beauty, the
Commission in AmCoal I held “[t]he requirements to provide factual support in the settlement
proposal and for the [J]udge’s decision approving settlement to be supported by the record have
been largely unchanged since the inception of the Commission’s procedural rules in 1979” and
“standards for such factual support may be found in section 110(i).” AmCoal I, 38 FMSHRC at
1981. Indeed, the Commission expressly rejected the Secretary’s argument that “it is
inappropriate for a Judge to consider section 110(i) factors when considering whether to approve
a proposed penalty settlement” and reaffirmed that the reach of section 110(i) “clearly includes
contested penalties that are the subject of a settlement agreement.” Id. at 1981-82 (internal
quotations omitted).
In AmCoal I, we affirmed the centrality of the section 110(i) factors to all penalty
assessments, whether they result from contest or compromise. In recognition of our Judges’ wide
discretion, including our precedents requiring them to consider certain factors outside of section
110(i) penalty criteria when presented in a motion to approve settlement, Judges are not required
to “make factual findings with respect to each of the section 110(i) factors as a Judge would in
the assessment of a penalty after hearing. Rather, the Judge considers such information in the
evaluation of whether the proposed reduction of penalties is fair, reasonable, appropriate under
the facts, and protects the public interest.” Id. at 1982.
We affirmed the Judge’s rejection of the settlement agreement in AmCoal I and remanded
the case. The Secretary and operator filed a second settlement motion, which was also rejected
by the same Judge. We took review of an interlocutory appeal from that decision in AmCoal II.
The resulting unanimous decision fully affirmed the above described holdings in AmCoal I and
Black Beauty, including the requirement that “the parties provide mutually acceptable facts that
demonstrate the proposed penalty reduction is fair, reasonable, appropriate under the facts, and
protects the public interest.” AmCoal II, 40 FMSHRC at 991. The Commission also held that a
full explanation as to how the Judge concluded that the penalty reduction was warranted serves
to protect the “public interest in evaluating whether a settlement should be approved.” Id. at 98788. The Judge’s decision was vacated for a variety of errors, inter alia, a mistaken interpretation
of our decision in AmCoal I as prohibiting consideration of any factors outside of section 110(i),
a failure to consider nonmonetary aspects of the settlement, etc. But, importantly, it was
remanded back to him for reconsideration of the settlement motion.
Commission decisions issued contemporaneous with and subsequent to AmCoal II have
reinforced our Judges’ active role in verifying, noting inconsistencies and filling gaps in the
factual representations and legal contentions parties make to justify settlement motions. For
example, in The Ohio County Coal Company, a Judge denied a motion claiming a penalty
reduction was warranted because the section 110(i) negligence level should be reduced from
“moderate” to “low.” 40 FMSHRC 1096 (Aug. 2018). The parties’ motion sought to justify the
reduction by explaining that a foreman was not present at the time of the violation, pointing out

42 FMSHRC Page 609

that the foreman’s absence was recorded in the inspector’s contemporaneous notes. The Judge
denied the settlement for the sole reason that he mistakenly perceived an inconsistency in the
facts offered to support the motion that was not adequately explained. The Commission reversed,
acknowledging that such inconsistencies are certainly germane to the Judge’s analysis, but
explaining at length how the Judge misconstrued the facts and concluding in this case the
Commission “do[es] not discern an internal inconsistency in the settlement terms that
undermines the parties’ agreement.” Id. at 1099.
Recently, the Commission emphatically reaffirmed the authority of our Judges to request
additional facts when presented with a settlement motion. In Solar Sources Mining, LLC, the
Commission stated that “a Judge who properly determines that a settlement motion lacks
sufficient information may permissibly request further facts from the parties” and that “the Judge
may identify gaps in the parties' explanations or specific information he may need to review and
approve the settlement.” 41 FMSHRC 594, 602-03 (Sept. 2019) (emphasis added).9
In sum, we have consistently protected our Judges’ exercise of wide discretion in
evaluating motions for settlement in light of the record as a whole to determine whether the
movants have demonstrated that proposed modifications to the underlying citation are consistent
with our caselaw applying the penalty criteria in section 110(i) and the AmCoal standard. And
that discretion only exists to the extent Commission majorities have deferred to its exercise
rather than reversing and substituting their own view as to whether the parties’ factual
presentation and legal contentions justify the penalty reduction.
B.

The Majority Decision is Contrary to Our Precedents.

The majority decision instructs our Judges to ignore whole sections of the record before
them when considering whether a settlement motion contains complete and accurate facts and
legal contentions sufficient to transparently demonstrate, as the public interest requires, that the
penalty reduction is “fair, reasonable and appropriate under the facts.” AmCoal I, 38 FMSHRC at
1982. Judges may no longer probe gaps or inconsistencies in the explanation offered in support
of a settlement motion, yet must now somehow determine whether a penalty reduction is
“appropriate under the facts” by relying solely and uncritically on the parties’ joint presentation
of facts and legal contentions. The decision also eliminates abuse of discretion review in all but
name only. It removes our Judges’ discretion to determine whether the parties have demonstrated
9

Additionally, we find it notable that in Solar Sources, the Commission examined the
totality of the facts as alleged by the parties and found, sua sponte, that the parties’ proposed
settlement was justified in part because two of the citations at issue may have been duplicative.
41 FMSHRC at 594, 603-04 (Sept. 2019). However, in the case at hand, the majority criticizes
the Judge for examining the totality of the facts at issue and considering, sua sponte, reasons why
the parties’ proposed settlement may not be justified under our caselaw. Slip op. at 8-13. Here, of
course, the Judge found that the proposed reduction in negligence was not appropriate because
the presence of a foreman in this section of the mine, at the time of the issuance of these four
citations, suggests that an agent of the operator either knew or should have known of the
violative conditions, which is inconsistent with the “low” negligence the parties agreed to in the
settlement motion. 41 FMSHRC at 338.

42 FMSHRC Page 610

that a proposed penalty reduction is warranted, by reviewing de novo our Judges’ application of a
multi-factored standard that has long been committed to their wide discretion.
1.

Judges must continue to examine whether the proposed penalty reduction is
appropriate to the facts of the case and should not be prohibited from doing so.

Our Judges are not required to blind themselves to the full record on their docket or
refrain from reasonable legal analysis when evaluating factual and legal claims in the
compromising parties’ motion that a penalty reduction is “fair, reasonable and appropriate under
the facts” by reference to the section 110(i) factors. Rather, they start with the factual allegations
in the citation attached to the penalty petition initiating the case as well as the Secretary’s initial
penalty proposal grounded on those facts. They then look to the parties to provide additional
facts and explanations in the settlement motion that could demonstrate a penalty reduction is
warranted, often pertaining to the parties’ agreement to modify the underlying citation by
tinkering with the section 110(i) factors in light of subsequently discovered facts, contextual
information or legal uncertainties. The Judge is not bound to blindly accept legal contentions the
parties make in an effort to demonstrate a penalty reduction is supported by the record viewed in
light of the section 110(i) factors.
Our precedents consistently require submission of facts in support of settlement motions.
This is not so that the Judge might make formal ‘findings of fact’ to establish or disprove the
violations alleged or any characteristic of such violations. Rather, such facts are essential to any
substantive evaluation of the parties’ claim that their penalty compromise is warranted under the
AmCoal standard.10 And to satisfy the public interest in transparency, a decision to reduce a
penalty must include a written explanation as to how such facts demonstrate the penalty
reduction is warranted. While no party is required to ‘prove’ any facts included in the motion to
justify the settlement, the Judge does need to meaningfully evaluate (not blindly accept) any
claim by the parties that the penalty reduction is justified by modifications to the underlying
citation – e.g. deleting an S&S designation, or ‘lowering’ one of the section 110(i) criteria, such
as negligence or gravity. And that judicial evaluation, summarized in the Judge’s written
published decision, is what “protects the public interest in evaluating whether a settlement should
be approved.” AmCoal II, 40 FMSHRC at 984.11
A Judge must actually evaluate – probe for gaps and inconsistencies and not blindly
accept – the facts and legal contentions in any settlement motion asserting a penalty reduction is
warranted. A part of that evaluation requires a determination of what the parties claim in their
10

To the extent the majority purports to prohibit our judges from requesting information
that goes beyond the factual and legal contentions in the parties’ motion, their holding precludes
the proper exercise of discretion to require factual support demonstrating the proposed penalty
reduction is warranted by reference to the section 110(i) penalty factors, in addition to other
relevant criteria, which is directly contrary to our unanimous precedential decision in AmCoal I.
11

A Judge’s written evaluation of the parties’ factual and legal contentions as to why a
penalty reduction is supported by modifications to an underlying citation does not serve the
public interest if it uncritically overlooks gaps and inconsistencies with the full record or our
case law applying the section 110(i) factors.

42 FMSHRC Page 611

motion, i.e., that the penalty reduction is justified because of modifications to the underlying
citation, is reasonable and appropriate under all of the facts alleged and provided in the motion,
and those facts alleged in the original pleadings. Pursuant to this holding, our Judges often
request additional factual support for such modifications, or a full explanation of why they were
agreed upon – e.g., recognition of some uncertainty as to the applicability of a certain point of
law, reconsideration of the strength of the factual allegations made in the pleadings in light of
subsequently discovered information or explanation, or, “a description of an issue on which the
parties have agreed to disagree.” AmCoal II, 40 FMSHRC at 991.12
The responsibility to ensure a penalty reduction is reasonable or appropriate under the
facts cannot be met by a Judge compelled to ignore gaps in the explanation, including
unexplained inconsistencies between the Secretary’s version of the alleged facts set forth in the
case pleadings and a revised version of facts the parties agree to include in their motion. In
settlement review, such gaps and inconsistencies in the factual presentation do not require a full
hearing for conclusive resolution, do not implicate the need for testimony to make credibility
12

Like the majority, we do not consider the Judge’s issuance of a subpoena, scheduling a
hearing prior to a decision on the parties’ motion for interlocutory review, or vacature of the
citations. However, the majority claims our Judges may not probe the veracity, consistency and
completeness of the facts and legal claims the parties include in their motion to justify approval
of their motion, relying in part on the concept of “party presentation” discussed in United States
v. Sineneng-Smith, 140 S.Ct. 1575 (2020). Slip op. at 5-6. But the Supreme Court in that decision
expressly observed that the concept of “party presentation” – the idea that Judges should
maintain a passive role allowing the parties to develop the factual record and arguments – is a
feature of an “adversarial system of adjudication.” Id. at 1579. Obviously, proceedings under
section 110(k) to consider the parties’ jointly proposed penalty reduction are non-adversarial –
even cooperative. Nothing in Sineneng-Smith supplies any coherent rationale for contravening
our precedents and the Act’s legislative history to curb our Judges’ responsibility to ensure that
penalty reductions in compromises struck by cooperating parties are both warranted and
transparent.
Because Sineneng-Smith does not address the unique administrative processes under
section 110(k) of the Mine Act, in which Commission Judges review jointly proposed settlement
motions to determine if the parties’ penalty compromise is warranted, it does not control. It is not
even persuasive, given the uniquely non-adversarial nature of proceedings under section 110(k).
Claiming otherwise, our colleagues maintain an obvious fiction that section 110(k) proceedings
are indistinct from penalty contests, discrimination proceedings and the other types of cases in
our “adversarial system of adjudication” under the Mine Act. Slip op. 6. Accepting this claim
would require that we ignore that in section 110(k) settlement review cases the interests of the
parties before our Judges are totally aligned, and neither engages the other in argument or
examination or any of the other tools used in an adversarial system to bring forward truth. Most
significantly, neither party rebuts the factual claims and arguments that are jointly presented to
our Judges for approval of a penalty reduction in section 110(k) proceedings. They are
indisputably non-adversarial and thus Sineneng-Smith – the only authority the majority cites as
justification for its departure from our precedents – is unquestionably irrelevant to interpretation
of section 110(k).

42 FMSHRC Page 612

determinations, and do not require a final determination of the merits of the citations. Instead,
they simply inform the Judge’s decision – left to her wide discretion – as to whether the parties
have demonstrated that the penalty compromise is fair, reasonable and “appropriate to the facts.”
And they form the basis of the explanation for approving or denying the penalty reduction that
the Judge must include in a written decision. A Judge may request from the parties additional
information explaining or providing context to omissions or inconsistencies. Or she might decide
that despite gaps or inconsistencies in an explanation regarding one criterion, the proposed
reduction is warranted by comparatively complete and consistent factual support relating to
another of the section 110(i) factors, or factors outside of those in section 110(i) we have held
justify penalty reduction. This is what is meant by wide discretion and is how our Judges have
been successfully doing this job for many years.
2.

Our Judges must continue to have meaningful discretion to perform “front line
oversight” of settlement agreements

The Commission has long held that settlements are committed to the sound discretion of
the Commission and its Judges, and that Judges are not “bound to endorse all proposed
settlements.” Madison Branch Mgmt., 17 FMSHRC at 864 (quoting Knox County Stone, 3
FMSHRC at 2480); see also Wilmot Mining Co., 9 FMSHRC 684, 686 (Apr. 1987) (“The
Commission has held repeatedly that if a judge disagrees with a penalty proposed in a settlement
he is free to reject the settlement and direct the matter for hearing.”); Pontiki Coal Corp., 8
FMSHRC at 675. We have never expressly overruled or limited these holdings.
Instead, in our latest cases addressing our Judges’ discretionary settlement review
function, we affirm that the concept of “wide discretion” articulated in our precedents has real
substance. We have held:
A Judge’s approval or rejection of a proposed settlement must be
based on principled reasons. Thus, the Commission has held that if
a Judge’s approval or rejection of a settlement is “fully supported”
by the record, consistent with the statutory penalty criteria, and not
otherwise improper, it will not be disturbed, but that abuses of
discretion or plain errors are subject to reversal.
Black Beauty, 34 FMSHRC at 1864 (citations omitted). Under this formulation, the Commission
may not reverse a decision that meets these standards simply because the Judge evaluated the
parties’ factual presentation and legal contentions differently from the approach preferred by a
majority of Commissioners on review. Application of the multifactor AmCoal standard –
incorporating the section 110(i) and other factors we have held relevant – will generally result in
some factors pointing toward one result and others to the opposite result. And nothing in section
110(i) or our caselaw explains the relative weight to be given to them. But they do focus the
Judge’s analysis. If a Judge has faithfully applied each factor in a manner consistent with our law

42 FMSHRC Page 613

and supported by the record, we have held her determination “will not be disturbed.”13 Id. By
contrast, if the Judge has neglected to apply or erroneously misapplied factors that served as a
basis for the decision, the Commission would have a basis for reversal.
But now, today’s majority ends Black Beauty/AmCoal I discretion, announcing a standard
that is “abuse of discretion” in name only, serving to confuse the state of our law and conceal the
degree to which the majority decision is incompatible with precedent. Addressing the factual and
legal “representation” the parties must include in their motion to demonstrate the penalty
reduction is fair and appropriate, the majority states:
If taking those representations into account, the settlement meets
the standard we articulated for approval in AmCoal I (fair,
reasonable, etc.), the settlement should be approved. Although the
Commission gives weight to the experience gained by ALJs
through the handling of many settlements, the denial of a
settlement that comports with the standard we have established is
an abuse of discretion, and the Commission may exercise its
discretion to accept the settlement. The facts of settlement come to
the Commission in exactly the same form and relevance as before
the Judge.
In sum, it is an abuse of discretion to deny a settlement when
agreed-upon or stipulated facts satisfy the standard for approval.
Slip op. at 8. Nowhere in this standard of review is there room for a Judge to make a decision
with respect to application of the AmCoal I elements that differs from the preferred outcome of a
majority of Commissioners but is nevertheless insulated by a standard that requires deference to
a decision that “is ‘fully supported’ by the record, consistent with the statutory penalty criteria,
and not otherwise improper.” Black Beauty, 34 FMSHRC at 1864. Simply put, the majority takes
an elaborately obscured path to ending abuse of discretion review, and with it, our Judges’
discretion.14
13

It must be noted in the context of the majority’s curbing of our Judges’ wide discretion,
this phrase, “consistent with our law,” means not contrary to any precedential decision of the
Commission and reviewing courts, which is very different from “consistent with the views of
what our law should be, as espoused by a majority of Commissioners who will review the
settlement approval decision de novo.”
14

The majority is profoundly confused as to the Commission’s role in this and other
cases in which we are asked to review the exercise of discretion by one of our Judges. At one
point, the majority writes that the “dissent would make one think that the exercise of our
discretion to grant the settlement places the settlement process on the verge of collapse.” Slip op.
at 14 (emphasis added). Elsewhere, they write “the Commission may exercise its discretion to
accept the settlement.” Slip op. at 8 (emphasis added).
(continued…)

42 FMSHRC Page 614

Of course, with the discretion we have long granted our Judges comes a corresponding
obligation to fully explain the basis of its exercise. “While Judges have the duty to consider the
sufficiency of facts submitted in support of a settlement, the proper exercise of their discretion in
doing so requires them to articulate with some particularity any deficiencies against the standard
we set forth in [AmCoal I].” Solar Sources, 41 FMSHRC at 601-02. But the majority has turned
the AmCoal standard on its head. In American Coal, we required our Judges to exercise true
discretion to apply each of its elements – fair, reasonable, appropriate under the facts – and
upheld their decisions so long as they were supported by the record. If not, or if the Judge
misapplied our law in the course of her evaluation, we remanded to the judge with instructions as
to how to properly exercise discretion.
Under the majority’s approach, the Judge’s application of each of these elements and
criteria is no longer really a function of discretion. Now, the Judge can be reversed by the
Commission, which will substitute its own de novo application of any and all elements of the
standard. Rather than providing room for discretion and, where error is found, remanding to the
Judge for exercise of wide discretion, the Commission now refuses remand as a matter of course,
rather than rare exception. This arrogation of power—in this case, undertaking a de novo review
of the parties’ motion to approve a greater than 80% penalty reduction – is not consistent with
the Commission’s duty when reviewing under the abuse of discretion standard to defer to the
Judge’s exercise of wide discretion. See Gall v. United States, 552 U.S. 38, 56 (2007) (“The
Court of Appeals gave virtually no deference to the District Court’s decision . . . [and a]lthough
the Court of Appeals correctly stated that the appropriate standard of review was abuse of
discretion, it engaged in an analysis that more closely resembled de novo review of the facts
presented.”); General Electric Co. v. Joiner, 522 U.S. 136, 143 (1997) (“In applying an overly
‘stringent’ review to [a discretionary] ruling, [the Court of Appeals] failed to give the trial court
the deference that is the hallmark of abuse-of-discretion review.”).
The role the majority decision leaves for our Judges is now more clerical than judicial –
taking the parties’ representations at face value, uncritically approving them, and entering a
decision neither party will appeal. Under the majority’s newly contrived standard, it does not
make sense to speak of our Judges having discretion or to pretend we are engaged in a proper
review of such discretion. “Discretion, like the hole in a doughnut, does not exist except as an
area left open by a surrounding belt of restriction.” Ronald Dworkin, Taking Rights Seriously 48
(Bloomsbury Academic 2013) (1977). True discretion is gone.

14

(…continued)

The majority mistakenly believes the question before us on review is whether the
Commission itself has discretion to approve or deny the settlement agreement, which simply
makes no sense in the context of a case where we are called to review the exercise of discretion
by the lower court. The confused majority does not appreciate any difference between a case in
which the settlement motion is filed initially with an ALJ, in which we review the Judge’s
exercise of discretion, and an entirely different case – not before us – in which the settlement
motion is filed with the Commission, in which case we would exercise discretion and a
reviewing Circuit Court would review our decision under an abuse of discretion standard.

42 FMSHRC Page 615

C.

Pursuant to our Precedents, the Judge Properly Exercised her Discretion to
Determine that the Motion Failed to Demonstrate the Penalty Reduction is
Warranted.

Each of the four citations alleges that Hopedale Mining failed to comply with its
ventilation plan as required by 30 C.F.R. § 75.370(a)(1).15 The Secretary originally proposed
civil penalties totaling $18,093 for the four citations and agreed to settle the four citations for a
total penalty of $3,339. The Judge denied the motions to approve settlement, finding that the
information provided was not sufficient to support the proposed modifications to negligence and
gravity, or the “drastic reduction” in penalty. 41 FMSHRC at 324-26. The Judge further
elaborated:
A full evaluation of the facts set forth in each citation reveals that
all of the citations were issued within a relatively short period of
time and in the same area of the mine. Each citation was issued for
a violation of the ventilation plan and the mine foreman was in the
area when the citations were issued. While the Secretary asserts
that the negligence of three of the violations should be reduced
from moderate to low largely because the foreman or an “agent of
the operator” was not aware of the violations, the facts paint a
different view . . . . [T]he mine foreman is held to a higher standard
and the negligence inquiry centers around whether he “knew or
should have known.” For all of these reasons, I deny the
Secretary’s request to reconsider the denials of settlement.
Id. at 328. In addition, the Judge found that the operator had a history of not complying with its
ventilation plan and the Secretary failed to explain his cursory assertion that the granting of the
settlement motion would aid his future enforcement efforts. Id. On the whole, the Judge found
that the parties failed to carry their burden to demonstrate that the proposed reduction was
appropriate under the facts, reasonable, fair or in the public interest. To summarize with more
specificity, the Judge ruled as follows with respect to each citation:
Citation No. 8055975 alleges that the operator failed to ensure that adequate air was
provided behind the line curtain in the active section where the roof bolter was operating. In
settlement, the parties proposed reducing the penalty from $1,031 to $462, the penalty that
results from reducing the negligence attributable to the operator from “moderate” to “low.”16 The
15

Section 75.370(a)(1) requires the operator to “develop and follow a ventilation plan
approved by the district manager.” 30 C.F.R. § 75.370(a)(1).
16

According to the Secretary’s own Part 100 guidelines, “moderate negligence” occurs
when “the operator knew or should have known of the violative condition or practice, but there
are mitigating circumstances” and “low negligence” occurs when “the operator knew or should
have known of the violative condition or practice, but there are considerable mitigating
circumstances.” 30 C.F.R. § 100.3(d). While a Commission Judge may consider the Secretary’s
Part 100 regulations, the Secretary’s definitions are not controlling. Commission Judges
undertake a traditional negligence analysis.

42 FMSHRC Page 616

Judge found that the parties failed to justify that a lower negligence designation was appropriate
and reasonable, in part, because a foreman was present and “an operator’s actual or constructive
knowledge is a key component of a negligence evaluation. Id. at 333 (citing Ohio Cty. Coal, 40
FMSHRC at 1099). The Judge determined the parties’ presentation failed to demonstrate how it
would be “reasonable” and “appropriate to the facts” that a penalty reduction is warranted by the
alleged absence of a foreman who should know that as mining advances farther from the
ventilation source, adequate steps must be taken to ensure continued compliance with the
ventilation plan. Id. at 333-34; cf. Black Beauty, 34 FMSHRC at 1863 n.6 (“[T]he explanation
provided by the Secretary for a reduction in penalty related to a preshift violation was
inconsistent with the inspector’s description of the violation described in the order, but the
inconsistency was not explained in the motion.”).
Citation No. 8055976 alleges that the operator failed to remove the tail curtain in the
entry intake, exposing miners to respirable coal dust and silica. In settlement, the parties
proposed reducing the penalty from $12,321 to $1,666, reducing the alleged negligence from
“high” to “moderate” and reducing the alleged gravity of the violation. The parties stated that a
reduction in negligence is justified because the condition only existed for a short time and the
foreman on the section was unaware of the violation. Assessing whether the proposed
modifications are “reasonable” and “appropriate under the facts,” the Judge found that these
contentions do not support the modifications to the citation, citing the serious dangers presented
by dust exposure and the high standard of care the Mine Act requires of a foreman. A reasonably
prudent foreman would have taken proactive measures to ensure that the curtain was properly
adjusted.17 41 FMSHRC at 335. The Judge found that paying approximately 14% of the
originally proposed penalty in settlement of this citation was not fair, reasonable, or in the public
interest.
Citation No. 8055977 alleges that the continuous miner had plugged water sprays; 19 out
of 30 water sprays were plugged. The ventilation plan requires a minimum of 27 sprays to be
operational. In settlement, the parties proposed reducing the penalty from $3,710 to $749,
reducing the negligence from “moderate” to “low” and reducing the gravity of the violation. The
parties stated that management was not aware of the violative condition and the personal samples
taken by the shuttle car operator showed that dusts levels were in compliance despite the
violation. The Judge concluded that the compliant dust levels were not relevant to the operator’s
negligence in failing to abide by the water spray requirement. Furthermore, she noted that the
record demonstrated that a high number of sprays were clogged, it took almost an hour to clean
and repair and that a supervisor was in the area.

17

In her analysis the Judge accepted the stipulated facts that the foreman was both
present and unaware of the violative conditions. The Judge then considered how these stipulated
facts affected the negligence attributable to the mine operator. The Judge recognized that a
foreman may be considered to have constructive knowledge of conditions. It is a reasonable
basis for her rejection of the parties’ legal contention that the reduction in negligence was
justified because the foreman had no actual knowledge of the violative conditions. The Judge
certainly did not engage in any credibility determination as the majority inaccurately alleges. See
slip op. at 8 n.4.

42 FMSHRC Page 617

Citation No. 8055978 was issued for failing to maintain the roof bolter vacuum as
required by the ventilation plan. To settle the citation, the parties proposed modifying the penalty
from $1,031 to $462 and reducing the negligence from “moderate” to “low.” The parties
contended that a reduction in negligence was justified because the violation did not exist at the
beginning of the shift, it was hard to detect a violation, and an agent of the operator was not
aware of the violation. The Judge determined the parties failed to explain how these contentions
warranted a penalty reduction given that a foreman was present and should have known of the
violation.
We find no abuse of discretion in the aforementioned analysis. Rather, we conclude that
the Judge properly considered the facts proffered by the parties as alleged and found that those
alleged facts and the parties’ explanations and legal contentions did not demonstrate under the
AmCoal standard that the proposed modifications to the citations were “reasonable” “fair” or
“appropriate under the facts” and therefore failed to demonstrate the reduction in penalty is
warranted. Cf. Black Beauty, 34 FMSHRC at 1863 n.6 (“[T]he motion to approve settlement lists
the same facts for the reduction in penalty for each roof control and accumulation violation, but
the motion does not include facts necessary to evaluate whether a reduction in negligence was
appropriate, or an explanation for why the number of persons affected by the violation should be
modified.”). The Judge’s conclusions are consistent with the AmCoal standard of review, “fully
supported by the record, consistent with the statutory penalty criteria, and not otherwise
improper.” Black Beauty, 34 FMSHRC at 1864 (internal quotations omitted).
III.
Conclusion
The majority provides no good reason for overturning the central holdings of at least
three decisions in the Black Beauty and AmCoal cases – to completely rework a settlement
review system that has performed admirably well. Principles of stare decisis are considered
binding absent a strong reason, which should be provided in any opinion that changes or
overrules precedent. Yet no policy or other reason is to be found in the majority’s opinion
explaining even one of multiple departures from our binding precedents. Other than an inapt
quote from a Supreme Court case and misinterpretation of a few select quotes from precedential
decisions to arrive at conclusions contrary to those decisions’ essential holdings, the majority
offers no reason – and certainly not a strong one – for departing from the rules of stare decisis to
upend a demonstrably successful review process.
We are concerned that the majority’s substantial yet unexplained departures from our
precedent compromise the Commission’s role as a check against abuses of power. Congress
intended for Commission Judges to ensure that the information provided in support of settlement
agreements is true and correct and that a penalty reduction based upon such information is
warranted under the appropriate criteria. Without this oversight, it is possible a government
Solicitor seeking to conserve litigation expenses and an operator looking to reduce penalties
could cooperate to arrive at a mutually acceptable penalty amount and then backfill factual
stipulations that would support modifications to the underlying citation needed to arrive at the

42 FMSHRC Page 618

desired Part 100 recommendation. Congress enacted the unique provision at section 110(k) for
the express purpose of ensuring the Commission would not be a mere rubber stamp, opening the
door to the type of deal-making and unwarranted settlements that originally concerned them
enough to delegate the Commission oversight authority in section 110(k).

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

42 FMSHRC Page 619

COMMISSION ORDERS

42 FMSHRC Page 620

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

August 21, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. WEVA 2015-0509
WEVA 2015-0632

v.
THE MONONGALIA COUNTY
COAL COMPANY

BEFORE: Rajkovich, Chairman; Jordan, Young, Althen, and Traynor, Commissioners
ORDER
BY THE COMMISSION:
These civil penalty proceedings arise under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act” or “Act”), and involve two orders which the
Department of Labor’s Mine Safety and Health Administration issued to what is now the
Monongalia County Coal Company (“MCCC”).1 We granted the Secretary of Labor’s petition
for discretionary review challenging a Judge’s determinations that (1) belt line accumulations,
which violated 30 C.F.R. § 75.400, were not attributable to an “unwarrantable failure” to comply
with the standard (Order No. 8059209); 2 (2) those accumulations did not constitute a “flagrant

1

The orders in dispute identified the operator as Consolidation Coal Company. Prior to
the date of the orders, CONSOL Energy, Inc. sold all the issued and outstanding common stock
of Consolidation Coal Company to Ohio Valley Resources, Inc. Thereafter, the name of the
mine at issue was changed from the “Blacksville No. 2 Mine” to the “Monongalia County Coal
Mine;” the Mine ID number, 46-01968, remained the same. After the purchase, the mine
operator’s name was changed to “The Monongalia County Coal Company.”
2

Section 75.400 provides that “[c]oal dust, including float coal dust deposited on rockdusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not be
permitted to accumulate in active workings, or on diesel-powered and electric equipment
therein.” The unwarrantable failure terminology, taken from section 104(d)(1) of the Act,
30 U.S.C. § 814(d)(1), establishes more severe sanctions for any violation that is caused by “an
unwarrantable failure of [an] operator to comply with . . . mandatory health or safety standards.”

42 FMSHRC Page 621

violation” under the Mine Act;3 and (3) a related violation of the preshift examination standard,
30 C.F.R. § 75.360(a)(1),4 was not the result of an “unwarrantable failure” (Order No. 8059212).
40 FMSHRC 1234 (July 2018) (ALJ).
On August 11, 2020, the Secretary and MCCC jointly moved the Commission to approve
their agreement to settle the case. Pursuant to the agreement, both unwarrantable failure
designations would be reinstated, while the Secretary would drop his appeal of the accumulations
violation being found to not be “flagrant.” The parties also agreed that the penalties assessed by
the Judge in his decision, which have already been paid by MCCC, would stand: $60,000 for
Order No. 8059209 and $22,200 for Order No. 8059212.

3

Section 8(a) of the Mine Improvement and New Emergency Response (“MINER”) Act
enacted in 2006 amended section 110(b) of the Act to create a “flagrant” violation designation
and to provide for the assessment of an enhanced penalty as follows:
Violations under this section that are deemed to be flagrant may be
assessed a civil penalty of not more than $220,000. For purposes
of the preceding sentence, the term “flagrant” with respect to a
violation means a reckless or repeated failure to make reasonable
efforts to eliminate a known violation of a mandatory health or
safety standard that substantially and proximately caused, or
reasonably could have been expected to cause, death or serious
bodily injury.
30 U.S.C. § 820(b)(2).
4

Section 75.360(a)(1) provides in pertinent part that “a certified person designated by
the operator must make a preshift examination within 3 hours preceding the beginning of any 8hour interval during which any person is scheduled to work or travel underground.” Belts are
required to be examined either once per shift or as part of a preshift exam for, among other
things, “accumulations of combustible materials.” See 30 C.F.R. § 75.362(a)(3)(iii) & (b).

42 FMSHRC Page 622

Having considered (1) the terms of the settlement agreement; (2) the substance of the
Judge’s penalty assessments; and (3) that on October 29, 2019, MCCC entered into bankruptcy
proceedings, we conclude that the settlement agreement “is fair, reasonable, appropriate under
the facts, and protects the public interest.” Am. Coal Co., 38 FMSHRC 1972, 1982 (Aug. 2016).
Consequently, we grant the settlement motion.5

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

/s/ Michael G. Young
Michael G. Young, Commissioner

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

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

5

Our grant of the motion renders moot the Secretary’s pending motion to strike parts of
the response brief MCCC filed with the Commission.

42 FMSHRC Page 623

ADMINISTRATIVE LAW JUDGE DECISIONS

42 FMSHRC Page 624

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
721 19TH ST. SUITE 443
DENVER, CO 80202-2500
TELEPHONE: 303-844-5266 / FAX: 303-844-5268

August 4, 2020
THEODORE OESAU,
Complainant,

DISCRIMINATION PROCEEDING
Docket No. CENT 2019-0276-DM
Case No. SC-MD-2019-07

v.
ROGERS GROUP, INC.,
Respondent.

Mine: Greenbrier Quarry
Mine ID: 03-00855
DECISION

Appearances:

Chris W. Burks, WH Law, PLLC, 1 Riverfront Place, Suite 745, North
Little Rock, AR 72114
Margaret S. Lopez, Ogletree, Deakins, Nash, Smoak, & Stewart, P.C.,
1909 K. Street , N.W., Suite 1000, Washington, D.C. 20006
J. Carin Burford, Ogletree, Deakins, Nash, Smoak, & Stewart, P.C., 420
20th Street North, Suite 1900, Birmingham, AL 35203

Before:

Judge Simonton

This case is before me upon a complaint of discrimination filed by Theodore Oesau
against Rogers Group, Inc. (“Rogers Group” or “Respondent”), pursuant to section 105(c)(3) of
the Federal Mine Safety and Health Act of 1977 (Mine Act), 30 U.S.C. § 815(c)(3).1 Oesau
contends that Rogers Group violated the Mine Act when it terminated his employment because
he engaged in activity protected under section 105(c). Rogers Group maintains that Oesau was
terminated for violating the company’s No Harassment Policy by uttering racial slurs on
numerous occasions and by trying to get the mine’s plant manager fired because he is Black.
A hearing was held on February 18–21, 2020 in Little Rock, Arkansas. Based on my full
consideration of the testimony and exhibits presented at hearing, the stipulations of the parties,
my observations of the demeanor of the witnesses, and the parties’ post-hearing briefs, I find that
Rogers Group did not violate the Mine Act when it terminated Oesau.

1

In this decision, the joint stipulations, transcript, the Complainant’s exhibits, and
Respondent’s exhibits are abbreviated as “Jt. Stip.,” “Tr.,” “Ex. C–#,” and “Ex. R–#,”
respectively. References to the transcript include numerals I, II, or III to denote the volume of the
transcript referenced, since each day’s transcript is independently paginated.

42 FMSHRC Page 625

I.

STIPULATIONS

In its February 7, 2020 prehearing submission, Respondent Rogers Group submitted the
following joint stipulations2 on behalf of the parties:
1. Respondent is and, at all times relevant to this proceeding, was the operator of the
Greenbrier Quarry, Mine ID number 03-00855.
2. The Greenbrier Quarry is a mine as defined in Section 3(h) of the Mine Act, 30 U.S.C. §
802(h).
3. At all times relevant to this proceeding, products of the Greenbrier Quarry entered
commerce, the operations of products thereof affecting commerce within the meaning
and scope of Section 4 of the Mine Act, 30 U.S.C. § 803.
4. Rogers Group is an operator, as the term “operator” is defined in Section 3(d) of the Mine
Act, 30 U.S.C. § 802(d).
5. The Federal Mine Safety and Health Commission properly has jurisdiction over this
proceeding.
6. Complainant Theodore Oesau (“Complainant” or “Oesau”) was previously employed by
Rogers Group.
7. Oesau is a miner, as defined in the Mine Act at 30 U.S.C. § 802(g).
8. Rogers Group terminated Oesau’s employment, effective March 14, 2019.
9. Oesau timely filed with MSHA a discrimination complaint under Section 105(c) of the
Federal Mine Safety and Health Act (“Mine Act”), 30 U.S.C. § 815(c), after his
employment was terminated.
10. MSHA conducted an investigation, pursuant to Section 105(c) and issued a determination
letter to Oesau, dated May 23, 2019, stating that “MSHA does not believe that there is
sufficient evidence to establish, by a preponderance of the evidence that a violation of
Section 105(c) occurred.”
11. On June 14, 2019, Oesau timely filed a Complaint with the Federal Mine Safety and
Health Review Commission, under Section 105(c)(3).
12. After receiving an Order to Show Cause, Rogers Group filed an Answer to the Complaint
on October 30, 2019.
2

A fourteenth stipulation concerning the parties’ agreement regarding admissibility of
exhibits has been excluded due to a dispute regarding the admissibility of Exhibits C–11 and C–
13, which arose at hearing.

42 FMSHRC Page 626

13. The presiding administrative law judge has authority to hear this case and issue a decision
regarding this case pursuant to Section 105 of the Mine Act, 30 U.S.C. § 815.
II.

FINDINGS OF FACT

A. Background
Respondent Rogers Group, Inc. operates the Greenbrier Quarry (“Greenbrier” or “mine”),
a sandstone open-pit quarry in Greenbrier, Arkansas. Jt. Stip. 1; Tr. II.12–13. The mine has
approximately 9–10 employees. See Tr. I. 100, 190, 276.
Complainant Oesau worked for Rogers Group from March 2012 until March 2019.
Respondent’s Post–Hearing Br. at 4; Jt. Stip. 8. He was employed as a light duty mechanic, and
was responsible for performing preventative maintenance on equipment. Tr. I. 200–01, 278.
Oesau is not a certified mechanic. Tr. I. 197. In addition to preventative maintenance, he also
worked as a backup equipment operator and performed upkeep, housekeeping, and landscaping
duties as needed. Tr. I. 201. Oesau worked at Greenbrier, but also rotated to three other Rogers
Group locations: El Paso, Cabot, and Conway County. Tr. I. 129. Because he worked at
numerous locations and was responsible for a variety of tasks, Oesau’s schedule varied each day,
but he generally worked at Greenbrier a couple of days per week. Tr. I. 134, 206–07.
Prior to March 2018, Oesau’s direct supervisor was the former Greenbrier plant
manager.3 Tr. I. 208; Tr. II. 111. According to Rogers Group’s western division vice president,
that former manager had poor attention to detail and poor safety results, and left the company
because he failed a drug screen. Tr. I. 111–12. Following the former Greenbrier manager’s
departure, the Cabot location’s plant manager became Oesau’s direct supervisor. Tr. I. 206, 208.
Respondent promoted a management trainee from its El Paso location to fill the
Greenbrier plant manager position in March 2018. Tr. I. 273; Tr. II. 109. Relevant to this case, he
is a Black person originally from Botswana. Oesau described his relationship with this plant
manager as “fine,” and said that the only issues the two of them ever had concerned safety. Tr. I.
135–36, 188. The plant manager said that Oesau came to him with safety concerns
“infrequently.” Tr. I. 317. This case largely centers on the relationship between Oesau and the
Greenbrier plant manager.
At various times prior to his termination, Oesau submitted a number of safety complaints
to Rogers Group management, both orally and in writing. See Tr. I. 140–41. At one point, he
began collecting safety complaints from other miners. Tr. I. 140–41. At that time, allegations
surfaced that suggested Oesau had, on multiple occasions, used racially derogatory, offensive
language to refer to the Greenbrier plant manager. Tr. III. 99–102.

3

Other than Complainant Theodore Oesau, the names of individuals who testified at the
hearing or were named in testimony, briefs, or exhibits are not disclosed in this decision pursuant
to an approved Protective Order issued on January 30, 2020. Tr. II. 8.

42 FMSHRC Page 627

As set forth in more detail below, Rogers Group investigated both Oesau’s safety
concerns and the claim that he had uttered racial slurs in the workplace. Respondent determined
that the employees at Greenbrier did not have any outstanding or unaddressed safety concerns
and confirmed that multiple miners had heard Oesau use offensive, racist language and that
Oesau was intent on getting the manager fired. Oesau was thereafter terminated for violating the
company’s No Harassment Policy.
At the hearing, Oesau asserted his belief that he was in fact “terminated for filing safety
issues against” the plant manager. Tr. I. 127. He claimed that he never made any sort of racebased comments about the plant manager or any other coworkers. Tr. I.185–87, 269.
B. Oesau’s Safety Complaints
At hearing, Oesau testified about a number of safety concerns he had regarding the
Greenbrier Quarry. He claimed that the plant manager was always in a hurry to get the operation
moving faster and was content with only partially fixing things so that equipment could keep
running. See, e.g. Tr. 190.
Oesau testified about specific events, practices, and pieces of equipment that he felt
posed safety hazards at Greenbrier.4 He first testified about a drop-axel water truck, which he
and another mechanic had previously tagged out of operation because it was under construction
and had a suspension issue. Tr. I. 127–29, 215. He claimed that the miner he found operating the
truck told him that the plant manager authorized the removal of the tags from the truck. Tr. I.
127. The plant manager denied directing anyone to remove a tag. Tr. I. 303; Tr. III. 75, 81. On
cross-examination, Oesau confirmed that an outside mechanic had examined the truck with the
other Greenbrier mechanic while Oesau was off-site. Tr. I. 215–16. The truck operator later
testified that it was the other Rogers Group mechanic who removed the tag from the water truck,
and that his impression was that the other mechanic talked to Oesau on the phone before doing
so. Tr. II. 253–54.
The second issue Oesau discussed at hearing concerned a “980H loader” that was
“popping in and out of gear.” Tr. 131. Another former Rogers Group employee who operated the
loader prior to leaving the company testified about this issue as well. Tr. I. 43–44. He said that
the plant manager encouraged him to run the loader despite the issue, but then clarified on crossexamination that the plant manager did not “make” him run it. Tr. I. 44. He also testified that the
plant manager had an outside mechanic come out to Greenbrier to examine the shifting issue and
fix it, but it would sometimes act up again after being fixed. Tr. I. 52. Oesau too acknowledged
that the plant manager had a mechanic come and look at the problem, but said initially that as far
as he knew, nothing had been done to fix the problem. Tr. I. 132. He later contradicted that
position and confirmed that the outside mechanic would work on the issue, think it was solved
and then it would come up again. Tr. I. 224. The plant manager testified that they had difficulty

4

These safety issues are recounted here in the order in which they arose in Oesau’s
testimony. The exact dates of specific events are not all well–established by witness testimony.
Such dates are not necessary to determining the outcome of this case.

42 FMSHRC Page 628

replicating the problem when outside mechanics came to troubleshoot, but that he took the
machine out of service when the issue persisted. Tr. I. 295; Tr. III. 92–93.
Oesau also testified about his concerns with the way in which material was dumped off
the high wall and onto a pile. Tr. 132–33. He suggested that dumping material off the side of a
high wall that has never been driven on or packed posed a hazard because of its inability to
support the weight of the equipment being driven on it. See Tr. I. 133. He further implied that
operators were dumping too close to the high wall. See Tr. I. 133–134. Oesau was not present at
the mine when this occurred. Tr. I. 228. When asked about this issue, the Greenbrier plant
manager acknowledged that an operator had raised this practice as a concern and stated that they
went to look at the area and came up with a solution to allow the operator to safely approach it.
Tr. I. 294–95.
Another safety issue Oesau raised was an electrocution that occurred at Greenbrier. Two
months after being electrocuted on the job, the affected miner mentioned the incident to Oesau.
Tr. I. 138. Oesau then told his supervisor, the manager at the Cabot location, who had not
previously heard about the incident. Tr. I. 138–39. The Greenbrier plant manager asserted that
though he did not communicate with the Cabot manager about the incident, he did report it to
upper management shortly after it happened. Tr. I. 349, 353.
Oesau also testified about a haul truck at the mine that had a broken seat. Tr. I. 139–40.
He said two miners at Greenbrier came to him with the problem, and the three of them went to
the Greenbrier plant manager to discuss it. Tr. I. 139. According to Oesau, the plant manager
said “it’ll be alright,” and one of the miners then went on driving the truck despite the broken
seat. Tr. I. 140. The plant manager testified that the seat normally allows an operator to adjust
how the seat “floats” depending on work conditions and other factors, and the issue was that the
seat had not been adjusting properly. Tr. III. 90. He also said that he made sure the operator was
comfortable driving the truck, and that he ordered a replacement seat. Tr. III. 90. Before the
replacement seat arrived, the operator came back to the plant manager and reported that he was
no longer comfortable operating the truck. Tr. III. 90. The plant manager said that another miner
then operated the truck until the new seat arrived since the faulty seat still performed for that
miner’s weight class. Tr. III. 90.
At the hearing, Oesau further testified that he had concerns about flat struts in the 325
haul truck, the same truck that had a broken seat. Tr. I. 147–48. Oesau reported that the condition
was the result of the truck being overloaded. Ex. 4, p. 1. However, the plant manager testified
that this could not be the case, since a front strut was at issue, which would indicate speeding
around a curve rather than overloading. Tr. III. 146. Oesau called in an outside mechanic to fill
up the struts, and the plant manager did not interfere with getting that work done. Tr. I. 227–28.
Oesau complained about a parking brake issue in the haul truck, too. Tr. I. 225; Ex. 4, p.
3. The truck’s brake pads were replaced, but Oesau said the outside mechanic who replaced the
pads said that the rotor was warped and also needed to be replaced. Tr. I. 226–27; Ex. 4, p. 3.
According to Oesau, the plant manager did not allow the mechanic to put in a new rotor. Tr. I.
226–27. The plant manager testified that the outside mechanic came several times to work on the
brakes. Tr. III. 85–86. Over the course of multiple visits, the brake pads were adjusted, the the

42 FMSHRC Page 629

locking mechanism was replaced, and the brake pads were replaced. Tr. III. 86. The plant
manager stated that the mechanic recommended the rotors be replaced, too, since they were
causing the brake pads to wear prematurely. Tr. III. 86. However, because the mechanic
confirmed there were no safety implications, the plant manager decided to wait to replace the
rotors. Tr. III. 86. He confirmed that the mechanic tested the brakes after each visit to ensure that
they worked properly. Tr. III. 86–87.
Next, Oesau testified that a sensor repair completed on a W–600 loader’s joystick was
insufficient to fix its problems and asserted that the joystick should have been fully replaced. Tr.
I. 229; Ex. 4, p. 4. The plant manager testified that he had called the mechanic in to look at the
issue, but since it was a few days before they could get out there, Oesau looked at the machine
before the outside mechanic did. Tr. III. 83. Oesau had ordered a new joystick assembly, but
once the outside mechanic came out and saw it, that mechanic did not think the entire thing had
to be replaced. Tr. III. 83–84. For that reason, the plant manager returned the joystick Oesau had
ordered. Tr. III. 84.
Finally, Oesau alleged that a miner had not been properly task trained to operate a piece
of equipment at the mine. Tr. I. 230. He did not ask the miner in question or the plant manager
about the training, but said that the two people qualified to do so told Oesau that they had not
task trained the miner yet. Tr. I. 230–31. Oesau believes the Mine Safety and Health
Administration (MSHA) cited Rogers Group for this. Tr. I. 231. The plant manager testified that
the miner was task trained on the equipment prior to Oesau’s complaint. Tr. III. 96–97. The
miner’s training records support this assertion. Ex. R–JJ.
After witnessing what he believed to be numerous safety issues at the mine and feeling
that nothing was being done about them, Oesau went to his direct supervisor, the manager of the
Cabot location, with his concerns. Tr. I. 140. Oesau testified that his supervisor directed him to
compile a written list of his concerns and to get written statements from other miners at
Greenbrier to document their concerns about the issues. Tr. I. 141. Oesau did this, and assembled
a list documenting the haul truck’s flat struts, broken seat, and faulty brakes, as well as the
loader’s joy stick issue. Ex. C–4, p. 1–4. His document included a statement from one other
miner, who complained about the loader’s joystick, overloaded haul trucks, and the plant
manager’s insistence on continuing operations when lightning is striking too close to the plant.
Id., p. 5–9.
Complainant’s counsel called four other former Rogers Group employees to testify about
safety issues. Tr. I. 41–123. One of these employees never worked at the Greenbrier location. Tr.
I. 119. All had some friction in their relationships with the Greenbrier plant manager. While
some of these witnesses testified about safety concerns that Oesau also complained of, it
appeared that they were essentially called to imply a pattern that shows employees who go over
the plant manager’s head to report safety concerns end up getting fired, just like Oesau.
However, none of the four former employees ever filed discrimination complaints against the
company. In large part, they testified about issues at other mine locations or facts that are
otherwise unrelated to this matter. In the interest of clarity, I have elected not to summarize their
testimony here.

42 FMSHRC Page 630

C. Oesau’s Harassing Remarks
Respondent maintains that Oesau was fired for racial harassment in violation of the
company’s No Harassment Policy. In particular, Respondent asserts that he was fired for using
racial slurs when referring to the Greenbrier plant manager—which clearly constitutes racial
harassment under the policy. At hearing, Rogers Group called multiple witnesses to testify about
the comments.
1. Miner A
One miner (“Miner A”), who himself is Black, credibly testified that he heard Oesau
make racially offensive statements on multiple occasions. The first time was in May 2018, when
Miner A had only been at Greenbrier for a few weeks. Tr. II. 264. After a morning safety
meeting, Miner A recalls Oesau say, in reference to the plant manager, “That black ass nigger
monkey. I ain’t doing nothing he tell me to do. He don’t know nothing he talking about.” 5 Tr. II.
263–64. About two hours later, Oesau came up to him and apologized, and Miner A told Oesau
to apologize to the plant manager, not him. Tr. II. 265.
A few weeks later, Miner A took a truck to Oesau to be fixed. Tr. II. 256, 266–68. Miner
A testified that he told Oesau “[the plant manager] told me to bring the truck up here for you to
fix the door,” and that Oesau replied, “I’m not going to fix on that nigger’s truck.” Tr. II. 257,
267. Feeling bad, Miner A left and fixed the door himself. Tr. II. 257–58.
The third time, Miner A again brought a truck to Oesau, this time for an antifreeze leak.
Tr. II. 268. Oesau first said he was busy, and Miner A “waited, and waited, and waited.” Tr. II.
268. When Miner A then said that the plant manager had him come up there to fix the issue,
Oesau said, “I’m not fixing anything for that nigger,” and Miner A drove off. Tr. II. 268.
Miner A did not report the harassment at first because he did not want Oesau to lose his
job. Tr. II. 268. However, by the third instance, he realized that Oesau really meant what he said,
and felt that Oesau was “too comfortable” using that offensive language—Miner A “just couldn’t
take it” anymore. Tr. II. 263, 268, 272.
When Oesau attempted to collect a written statement from him about the plant manager
allegedly putting miners in danger, Miner A told Oesau that he did not want to be involved. Tr.
II. 258–59. Because he felt as if Oesau and two other miners were blindsiding the plant manager
by trying to get him fired for things that were not true, Miner A went to the plant manager to tell
him about Oesau’s attempts to get miners to write up safety complaints. Tr. II. 260–61. At that
time, he also told the plant manager about the racial slurs Oesau had used when referring to him.
Tr. II. 261.

5

Reluctantly, I recount the racial slurs articulated at the hearing in order to provide an
accurate, uncensored account of the testimony.

42 FMSHRC Page 631

2. Miner B
A second miner (“Miner B”) testified he heard Oesau use racial slurs several times. The
first instance was before a morning safety meeting, when Oesau used the “n” word to refer to the
plant manager. Tr. II. 318. Then, in the shop on another morning, Oesau used the slur again. Tr.
II. 319. Miner B told Oesau that that was not “the best thing to be saying” since they had the
plant manager and Miner A, who are both Black, working at the mine, and added that it was
disrespectful to say in front of anybody. Tr. II. 319. Miner B also testified that Oesau had said
“monkey” on three or four separate occasions, and that he figured Oesau was referring to the
plant manager each time he said it. Tr. II. 320–21.
Miner B did not report the comments right away because he thought that Oesau might
stop using that language. Tr. II. 319. However, after the second time he heard Oesau use the “n”
word in the shop, Miner B called the plant manager after work to tell him about the racial slurs as
well as Oesau’s attempts to collect safety violations against the plant manager. Tr. II. 326–28.
Regarding the safety violations, Miner B said that another miner had approached him on behalf
of Oesau and told him that Oesau wanted to “get a list of safety violations to try to go against
[the plant manager], to try to get him fired.” Tr. II. 328. Miner B told the other miner that he was
not going to do that, and testified that he felt it was wrong because the plant manager had never
done anything to put any of the miners at risk. Tr. II. 328–29. Miner B said the plant manager
was “surprised that somebody was trying to go after him” and told Miner B that he would take
care of it. Tr. II. 329–30.
3. Greenbrier Plant Manager
The plant manager testified that four miners told him Oesau was going around collecting
safety complaints in an attempt to get him fired. Tr. I. 323–24. In addition to Miners A and B
reporting to him about the slurs and collection of safety complaints, the plant manager said a
third miner also called him about the safety complaints. Tr. I. 324. The plant manager then called
a fourth miner to see if he knew anything about it. Tr. I. 324. After hearing from the miners, the
plant manager sent an email to his supervisors in upper management with an attached document
detailing the issues. Tr. I. 328. In pertinent part, the attachment reads as follows:
Information given below is as given to me by those who took the liberty to inform
me in the spirit of confidence and would like to maintain anonymity:
On Thursday, March 21st 20196, Ted Oesau came to Greenbrier quarry to perform
some PMs on our equipment. During the course of the day he approached some of
my employees individually to notify them that [the Cabot manager] had instructed
him to compile all events in which I asked/forced them (my employees) to work
unsafely or put them in uncomfortable/hazardous situations. It was mentioned that
6

This date is incorrect. The document should say February 21, 2019. The email this
attachment accompanied is dated February 25, 2019, and the Thursday preceding the date of the
email was February 21, 2019. The plant manager also acknowledged the typo at hearing. See Tr.
III. 109.

42 FMSHRC Page 632

Ted assured those he spoke to that he was going to take the information directly to
[the division vice president] to purge me. When Ted approached some individuals
they refused to be a part of his agenda, however, [“Miner C”] continued to
persuade everybody to join him and Ted on this mission. Everyone on the crew
except for [“Miner D”] declined [Miner C]’s attempt. [Miner D] allegedly agreed
to join forces with Ted Oesau and [Miner C].
Friday morning, first employee approached me to warn me to the situation that
was brewing. Throughout the day on Friday and Saturday the rest of my team
called me to warn me of this. . . .
Two of my employees remarked that Ted had used hateful words against me in
the past, calling me a “black monkey” and a “nigger”. These words were said in
front of other employees in my absence.
Ex. R–X, p. 3.
The plant manager also recalled a conversation he had with Oesau’s supervisor, the Cabot
manager,7 after Oesau was fired: “he told me that he personally has heard Ted call me a nigger,
previously, and he coached Ted to never use that language ever again during his employment
with Rogers Group.” Tr. I. 334.
D. Rogers Group Investigations
Both before and after the Greenbrier plant manager sent the email about Oesau’s apparent
attempt to get him fired, Rogers Group upper management conducted investigations into Oesau’s
various safety complaints. The western division vice president testified at hearing about these
investigations. After initially becoming aware of issues between Oesau and the Greenbrier plant
manager in December 2018, he held a meeting in his office in January 2019.8 Tr. II. 36, 114. In
that meeting, the division vice president, the Arkansas production manager, the Greenbrier plant
manager, and Oesau met to discuss safety concerns as well as communication issues between
Oesau and the plant manager. Tr. II. 36–37. At hearing, the division vice president could not
remember which safety issues in particular were discussed at the January meeting. Tr. II. 38.
A second meeting was held in the division vice president’s office in February 2019. Tr.
II. 39. At that meeting, Oesau claimed that tags were being taken off of a water truck and it was
being operated when it was tagged out. Tr. II. 119–20. After that meeting and after receiving
Oesau’s list of complaints from the Cabot manager, the division vice president went to
Greenbrier to look into the safety issues. Tr. II. 122–25. He talked through the complaints with
the plant manager and went through and investigated each complaint himself. Tr. II. 125–26.
7

Unfortunately, Oesau’s direct supervisor was not called to testify at the hearing.

8

According to a timeline submitted by Complainant, this meeting occurred in either late
November or early December, not in January. Ex. C–6, p. 2. Though the date of the meeting is
not established, this discrepancy does not impact the outcome of this case.

42 FMSHRC Page 633

The division vice president believed that the issues between Oesau and the plant manager
had something to do with the transition from the old Greenbrier plant manager to the new one—
they had different management styles. Tr. II. 114–15. He testified that, to him, it seemed that the
main problem between them was communication, and that both Oesau and the plant manager
seemed willing to work together going forward after each meeting in his office. Tr. II. 115–18.
Following the Greenbrier plant manager’s February 25, 2019 email about Oesau’s
offensive statements and attempts to collect safety complaints about the plant manager, the
division vice president directed the Arkansas area manager9 and general manager of central
Arkansas operations to begin an investigation. Tr. II. 131; Ex.13, p. 1. The area manager did not
testify, but he did author a memo which recounts the investigation and the events leading up to it.
Ex. R–Y. It explains that, on March 11, 2019, he and the general manager:
Both traveled to Greenbrier to interview all hourly employees on site. Each
employee was brought into an individual interview to determine if they had been
required to work in an unsafe manner, to ask how they felt the safety culture was,
determine if the crew had received appropriate training, and to determine if they
had been part of or witnessed anyone participating in derogatory conversation
regarding supervision or coworkers. After having detailed conversations with all
personnel on site it was discovered that 3 employees had witnessed Mr. Oesau
calling [the plant manager] racially slanderous names. It was also found that only
[“Miner E”] felt that there could be a safety issue at Greenbrier, but during
conversation it was also discovered that he had never been asked to or forced to
work in an unsafe manner.
Id., p. 3. The general manager’s testimony at hearing was consistent with this. He recounted that
he and the area manager went to Greenbrier unannounced and interviewed employees one at a
time. Tr. II. 175–76. They asked the miners whether they had any safety concerns and if they
“had heard any obscene, or vulgar, or derogatory, or racial type slurs in and around the
operations.” Tr. II. 176. The interviewers did not name Oesau in their questioning, but the notes
they typed up later states that two of the three miners who had heard racially charged language
“offered up, without coercion, Mr. Oesau’s name.” Tr. II. 176, Ex. R–Z, p. 2.
Two of the witnesses at hearing were miners that had been questioned in the March 11,
2019 interviews. Miner A recalled being asked if he had heard anything inappropriate said
around the mine. Tr. II. 271. Without naming Oesau, Miner A told the investigators about the
three instances in which he had heard racially offensive language at Greenbrier. Tr. II. 271, 291.
Miner B testified that when he met with the investigators, they asked him about the safety culture
around the plant, and he told them that they had no problems with safety. Tr. II. 331. When
asked generally about racial harassment, Miner B told the investigators that Oesau had been
making racial comments. Tr. II. 331.

9

This individual was also referred to at hearing as the production manager for Arkansas.
Tr. II. 172.

42 FMSHRC Page 634

The investigators did not interview the plant manager as part of their investigation into
Oesau’s offensive remarks. Tr. I. 328–29. The two interviewers took handwritten notes and later
typed them into a document at the request of Rogers Group’s Health and Safety director. Tr. II.
176–78.
E. Oesau’s Termination
The division vice president reviewed the results of the investigation with the area
manager, and they agreed that Oesau should be terminated. Tr. II. 137–38. Neither the
Greenbrier plant manager nor the Cabot plant manager was involved in the decision to terminate
Oesau. Tr. II. 137–38, 139–40; Tr. III. 110. Oesau was called into the division vice president’s
office and informed of his termination on March 19, 2019. Tr. I. 150; Jt. Stip. 8. Oesau estimated
that his termination occurred approximately three weeks after turning in his list of safety issues
to his supervisor. Tr. I. 150.
Oesau filed a 105(c) discrimination complaint with MSHA on March 26, 2019. Ex. C–1,
p. 1. On May 23, 2019, MSHA notified Oesau that the agency had investigated his complaint and
determined that there was insufficient evidence to support his allegations. Id. p. 6–7. Oesau then
initiated this case on June 14, 2019. Jt. Stip. 11. Testimony and documentary evidence was
presented at a hearing held in Little Rock, Arkansas on February 18–21, 2020, and the parties
thereafter submitted briefs and replies to the court.
III.

DISPOSITION

Oesau’s termination is the subject of this case. He claims that he was fired because he
raised concerns about various safety issues. Rogers Group argues that his safety complaints are
not protected activity because Oesau had no reasonable, good faith belief that his safety
allegations were true. Respondent maintains that it did not terminate Oesau because he engaged
in protected activity, but rather because he violated the company’s No Harassment Policy by
using offensive, racist language on multiple occasions in front of other employees at work and
because he attempted to lure other employees into a racially-motivated campaign to get the
Greenbrier plant manager fired.
Section 105(c)(1) of the Mine Act provides that a miner shall not be discharged or
otherwise discriminated against because they have made a complaint regarding an alleged safety
or health violation. 30 U.S.C. § 815(c)(1). Under the traditional Pasula-Robinette framework, the
Commission has held that a miner alleging discrimination establishes a prima facie case of
prohibited discrimination by presenting evidence sufficient to support a conclusion that (1) the
complainant engaged in protected activity, and (2) the adverse action complained of was
motivated in any part by the protected activity. Jayson Turner v. Nat'l Cement Co., 33 FMSHRC
1059, 1064 (May 2011); Driessen v. Nev. Goldfields, Inc., 20 FMSHRC 324, 328 (Apr.
1998); Sec'y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799
(Oct. 1980), rev'd on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d
1211 (3d Cir. 1981); Sec'y of Labor on behalf of Robinette v. United Castle Coal Co., 3
FMSHRC 805, 817–18 (Apr. 1981).

42 FMSHRC Page 635

If a miner establishes a prima facie case, the operator may rebut that case “by showing
either that no protected activity occurred or that the adverse action was in no part motivated by
the protected activity.” Turner, 33 FMSHRC at 1064. If the operator cannot rebut the prima facie
case, it may nevertheless defend affirmatively by proving by a preponderance of the evidence
that, although part of its motivation was unlawful, the adverse action was also motivated by the
miner’s unprotected activity and it would have taken the adverse action against the miner for the
unprotected activity alone. Id.; Pasula, 2 FMSHRC at 2799–2800.
A. Prima Facie Case
It bears repeating that to make out a prima facie case of discrimination, a complainant
need only present “evidence sufficient to support a conclusion that the individual engaged in
protected activity and that the adverse action complained of was motivated in any part by that
activity.” Driessen, 20 FMSHRC at 328 (emphasis added). “This burden is lower than the
ultimate burden of persuasion, which the complainant must sustain as to the overall question of
whether section 105(c)(1) has been violated.” Turner, 33 FMSHRC at 1065. For the reasons that
follow, I find that Oesau has met this initial, low burden and established a prima facie case of
discrimination.
1. Protected Activity
Complainants bear the burden of establishing protected activity. Pasula, 2 FMSHRC at
2797–2800; Sec’y of Labor on behalf of Riordan v. Knox Creek Coal Corp., 38 FMSHRC 1914,
1920–21 (2016). A miner has engaged in protected activity if they (1) have “filed or made a
complaint under or related to this Act, including a complaint . . . of an alleged danger or safety or
health violation;” (2) are “the subject of medical evaluations and potential transfer under a
standard published pursuant to section 101;” (3) have “instituted or caused to be instituted any
proceeding under or related to this Act or has testified or is about to testify in any such
proceeding;” or (4) have “exercised on behalf of himself or others . . . any statutory right
afforded by this Act.” 30 U.S.C. § 815(c)(1).
It is undisputed that Oesau raised numerous safety concerns while employed at Rogers
Group. Though Respondent does not dispute the existence of Oesau’s safety complaints, it has
attempted to show that Oesau’s complaints were made in bad faith and are thus unprotected by
the Mine Act. See Respondent’s Post-Hearing Brief (Resp. Br.) at 40–62. Rogers Group argues
that Oesau “ignored open and obvious information readily available to him showing that there
was no hazard.” Resp. Br. at 41. Respondent has also endeavored to undermine Oesau’s safety
concerns by highlighting that he is not a certified mechanic. Id.
Unquestionably, raising safety concerns at work constitutes “protected activity” within
the ambit of section 105(c). See, e.g., Riordan, 38 FMSHRC at 1922 (“Raising safety concerns is
paradigmatic ‘protected activity’ within the meaning of section 105(c)(2).”). For the purpose of
this decision, it is immaterial whether the safety hazards Oesau feared actually existed. Oesau
had no duty to avail himself of information that could have dispelled his concerns prior to
submitting his complaints, and thus his failure to do so does not amount to bad faith. Oesau has
provided sufficient evidence to show that he had legitimate concerns about various practices and

42 FMSHRC Page 636

equipment at Greenbrier and that he communicated these concerns to his superiors. Ex. C–4, p.
1–4; see Tr. I. 140–41, 145–49. Accordingly, I find that Oesau engaged in protected activity and
has satisfied the first element of the prima facie case.
2. Adverse Action Motivated by Protected Activity
The Commission has defined “adverse action” as “an action of commission or omission
by the operator subjecting the affected miner to discipline or a detriment in his employment
relationship. Sec’y on behalf of Pendley v. Highland Mining Co., 34 FMSHRC 1919, 1930 (Aug.
2012). The question of whether an employer’s action qualifies as “adverse” is thus decided on a
case by case basis. Sec’y of Labor ex. rel. Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842,
1848 n.2 (Aug. 1984).
Oesau alleged in his initial MSHA complaint and briefly mentioned at hearing that he
was denied a raise in early February 2019. Ex. C–1, Tr. I. 268. This allegation was scarcely
discussed at hearing and Oesau has failed to proffer any evidence that establishes he was ever
denied a raise. There is no dispute, however, that Respondent discharged Oesau on March 14,
2019. Jt. Stip. 8. This indisputably constitutes adverse action, as “[d]ischarge is perhaps the
clearest form of adverse action prohibited by the plain language of the Mine Act.” Driessen, 20
FMSHRC at 329. Having established both protected activity and an adverse action, Oesau must
demonstrate that there is evidence sufficient to support an inference of a causal nexus: that his
protected activity motivated Rogers Group to terminate his employment.
A miner need not provide direct evidence of an operator’s discriminatory motive, but
may provide “circumstantial evidence . . . and reasonable inferences drawn therefrom may be
used to sustain a prima facie case.” Turner, 33 FMSHRC at 1066–67 (quoting Bradley v. Belva
Coal Co., 4 FMSHRC 982, 992 (June 1982)). In evaluating whether a causal connection exists
between the protected activity and the adverse action, the Commission looks to four factors: “(1)
the mine operator's knowledge of the protected activity; (2) the mine operator's hostility or
‘animus’ toward the protected activity; (3) the timing of the adverse action in relation to the
protected activity; and (4) the mine operator's disparate treatment of the miner.” Cumberland
River Coal Co., 712 F.3d at 318; see also Sec'y of Labor on behalf of Chacon v. Phelps Dodge
Corp., 3 FMSHRC 2508, 2510–12 (Nov. 1981), rev'd on other grounds, 709 F.2d 86 (D.C. Cir.
1983). I will examine these factors in turn.
a. Knowledge of Protected Activity
Rogers Group does not dispute that Oesau submitted safety complaints. Multiple miners,
including Oesau, testified about the way in which Oesau complained to his supervisor about
various issues he had with situations and equipment at the mine. As discussed above, I do not
agree with Respondent that Oesau’s allegations were all in bad faith and thus not protected
activity. I find that Respondent had knowledge of Oesau’s protected activity.

42 FMSHRC Page 637

b. Animus or Hostility Toward the Protected Activity
Oesau argues that an email sent by the Rogers Group Arkansas area manager to the
division vice president definitively establishes Respondent’s animus toward his complaints.
Complainant’s Post-Hearing Brief at 15–16. With regard to Oesau’s alleged racially charged
derogatory comments the email states that,
[b]y itself this conduct could be forgivable, with a last chance, if there was
acknowledgement from Ted and remorse regarding the conduct. The problem
with the conduct is that it is aggravated by Ted’s concerted attempt to organize
the labor force. Again, if this concerted activity was isolated and the only issue
there could be consideration given. Given the circumstance that both acts indeed
occurred, the likelihood of being able to salvage Ted’s job is slim to none.
Ex. C–13, p. 2. After considering all of the evidence and testimony, I do not agree with Oesau’s
assertion. However, for the purpose of establishing a prima facie case, I will accept that this
email is at least sufficient to support an inference that there was some animus towards Oesau’s
collection of safety complaints from other miners, which is related to his protected activity.
c. Timing
Oesau was terminated within a matter of weeks after he submitted a list of safety
complaints to his supervisor. See Tr. I. 150. The Commission does not apply “hard and fast
criteria in determining coincidence in time between protected activity and subsequent adverse
action when assessing an illegal motive.” Hicks v. Cobra Mining, Inc., 13 FMSHRC 523, 531
(Apr. 1991). Given the objectively short amount of time between the protected activity and the
adverse action, I find that a coincidence in time exists in this case.
d. Disparate Treatment
Oesau has not provided any evidence of disparate treatment. “Typical forms of disparate
treatment are encountered where employees guilty of the same, or more serious, offenses than
the alleged discriminatee escape the disciplinary fate which befalls the latter.” Chacon, 3
FMSHRC at 2512. While the company has not experienced any other allegations of racial
harassment, it had previously dealt with a sexual harassment allegation. Tr. I. 141–42. In that
instance, as in this one, Rogers Group conducted an investigation, confirmed the allegations were
true, and terminated the employee for violating the No Harassment Policy. Tr. I. 142.
Because Oesau’s experience was consistent with that of the other employee who violated
the policy, I find that he was not subject to disparate treatment.
e. Conclusion
Bearing in mind that the prima facie burden is minimal, I find, in light of the above
factors, that Oesau has put forth evidence that “could support an inference” that the adverse
action was motivated, at least in part, by his protected activity. Turner, 33 FMSHRC at 1066

42 FMSHRC Page 638

(citation omitted). As discussed below, however, I find that Rogers Group has successfully
rebutted Oesau’s prima facie case.
B. Rebuttal
The operator may rebut the miner's prima facie case by showing either that no protected
activity occurred or that the adverse action was in no part motivated by the protected activity.
Turner, 33 FMSHRC at 1064. As discussed above, Rogers Group argues that no protected
activity occurred because Oesau made his safety complaints in bad faith. Because I disagree, and
find that protected activity has occurred, I turn to Respondent’s additional argument that Oesau’s
termination was in no part motivated by his protected activity.
Respondent asserts that “the evidence firmly establishes that Oesau used racist language
at work, including highly offensive words and phrases that any person would recognize as
bigoted, potentially threatening, and unacceptable in any context.” Resp. Br. at 65. I agree. The
language Oesau used is a flagrant violation of Rogers Group’s No Harassment Policy, which
explicitly lists “racial comments, slurs, [and] off-color jokes” as examples of harassment. Ex. R–
B, p. 1. The policy also states that, following an investigation, “[i]f harassment is found,
disciplinary action, up to and including termination, will be taken against the harassing
employee.” Id., p. 3.
Through the testimony of multiple witnesses, Rogers Group established that Oesau made
race-based, offensive comments at Greenbrier when referring to the Black plant manager. The
evidence also shows that Oesau endeavored to get the plant manager fired by attempting to
collect safety complaints about the plant manager. Oesau’s counsel points to the area manager’s
email referencing “Ted’s concerted activity to organizer the labor force” as “smoking gun”
evidence of discrimination under the Mine Act. Tr. I. 19; Ex. 13, p. 2. However, I find that the
email, especially when analyzed in light of the extensive testimony on this issue, actually just
shows that Rogers Group management was concerned about both Oesau’s racist comments and
his racist motivation likely behind the attempt to get the plant manager fired.
The evidence is clear: Rogers Group fired Complainant for racial harassment.
Respondent’s decision to terminate Oesau was not motivated by his protected activity, but rather
by his violation of the No Harassment Policy and Rogers Group’s interest in enforcing that
policy and ensuring that employees have a workplace free of harassment. I find that Rogers
group has successfully rebutted Oesau’s prima facie case.
C. Affirmative Defense
If an employer cannot rebut the prima facie case, “it nevertheless may defend
affirmatively by proving that is also was motivated by the miner’s unprotected activity and
would have taken the adverse action for the unprotected activity alone.” Turner, 33 FMSHRC at
1064. In asserting this defense, “[i]t is not sufficient for the employer to show that the miner
deserved to have been fired for engaging in the unprotected activity . . . . The employer must
show that [it] did in fact consider the employee deserving of discipline for engaging in the

42 FMSHRC Page 639

unprotected activity alone and that [it] would have disciplined him in any event.” Pasula, 2
FMSHRC at 2800.
Ample evidence shows that Rogers Group was motivated to discipline Oesau for the
harassing remarks he made at work. The company’s harassment policy, its internal emails
admitted into evidence, its past discharge of a harassing employee, and testimony of its
management officials make this clear. In fact, when asked by the court about why the company
elected to “go straight to termination, as opposed to some other discipline,” Rogers Group’s
director of human resources confirmed that it was “the egregious nature of the comments that
were made” that merited going straight to termination. Tr. III. 209.
As discussed above, I find that Rogers Group terminated Oesau based on unprotected
activities alone. However, even assuming that Oesau’s protected activity partially motivated
Rogers Group’s decision to terminate him, Respondent still did not violate section 105(c) of the
Mine Act because it has proven that it would have terminated Oesau for his harassing conduct
alone. Rogers Group has thus proven its affirmative defense.
IV.

ORDER

Accordingly, it is ORDERED that the complaint of discrimination brought by Theodore
Oesau is hereby DISMISSED.

/s/ David P. Simonton
David P. Simonton
Administrative Law Judge

Distribution: (Email10)
Chris W. Burks, WH Law, PLLC, chris@wh.law
Margaret S. Lopez, Ogletree, Deakins, Nash, Smoak, & Stewart, P.C.,
margaret.lopez@ogletree.com
J. Carin Burford, Ogletree, Deakins, Nash, Smoak, & Stewart, P.C., carin.burford@ogletree.com
10

For the foreseeable future, Federal Mine Safety and Health Review Commission
(FMSHRC) notices, decisions, and orders will be sent only through electronic mail. Because
FMSHRC will not be monitoring incoming physical mail or faxes, parties are encouraged to
submit all filings through the agency’s electronic filing system. If you are not able to file through
our electronic filing system, please send an email copy and we will file it for you.

42 FMSHRC Page 640

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

August 4, 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

DECISION AND ORDER GRANTING TEMPORARY REINSTATEMENT
Appearances: Thomas J. Motzny, Esq., Nashville, Tennessee, for the Secretary of Labor
Tony Oppegard, Esq., Lexington, Kentucky, and Wes Addington, Esq.,
Whitesburg, Kentucky, for the Complainant
Arthur M. Wolfson, Esq., Fisher & Phillips, LLP, for the Respondent
Before:

Judge William B. Moran

This matter is before the Court on an application for temporary reinstatement
(“Application”) filed by the Secretary of Labor on behalf of Complainant William R. Whitmore
pursuant to Section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
815(c)(2) (“the Act”). The application, which was filed on July 9, 2020, seeks reinstatement of
the Complainant “to the position he held immediately prior to the discharge, or to a similar
position, at the same rate of pay, same shift assignment, and with the same or equivalent duties.”
Application at 3. A video hearing on the Application was held on July 29, 2020. For the reasons
that follow, the application is granted. Respondent is ORDERED to immediately reinstate the
Complainant, William R. Whitmore, to the position he held immediately prior to his discharge,
or to a similar position, at the same rate of pay, and the same shift assignment, and with the same
or equivalent duties.

42 FMSHRC Page 641

SUMMARY OF THE EVIDENCE
As set forth below in greater detail, on the basis of credible testimony presented during
the July 29, 2020 video hearing, the Court finds that the Complainant established several
instances of protected activity by voicing safety complaints, that the Respondent had knowledge
of those safety complaints, and that the Complainant’s suspension and termination occurred soon
after those safety complaints were made. The Respondent’s defense did nothing to dispel the
credibility of the Complainant’s safety complaints, but rather spoke to an alternative basis for the
Complainant’s firing. That defense did not, in any way, tend to show that Mr. Whitmore’s claim
was frivolous. Accordingly, the Court finds that the Mr. Whitmore’s Complaint was not
frivolously brought and on that basis that the Complainant is to be immediately reinstated to his
former position.
HEARING TESTIMONY AND FINDINGS OF FACT1
Mr. William Whitmore, the Complainant, testified first. Whitmore began his employment
with Respondent, Yager Materials Corp, on September 30, 2019. His job title was “maintenance
manager.”2 Tr. 19-20. The name of the mine for both its underground and surface operations is
Riverside Stone. Tr. 60. He described his job duties as “[s]ite-wide maintenance management
for the underground mine and the surface mine. … [which entailed] [a]ll of the plant equipment
that processes the aggregate and also all of the mobile equipment that produces the aggregate.” 3
Tr. 20. It is noted that, among his work experience, Whitmore is an MSHA certified instructor
and has done a lot of miner safety training in the course of his 36 years of mining experience. Tr.
62. Whitmore was terminated (fired) from his job at Yager on April 29, 2020. Id.
Whitmore testified that, during January 2020, while he was on medical leave, he
anonymously reported safety incidents, which occurred prior to that leave, to MSHA through an
online method provided by MSHA to report such matters. Tr. 21-24. The incidents he reported
through the MSHA online method involved inadequate training and improper documentation of
such training, relating to mobile equipment operators. Id. Upon his return to work, though no one
accused Whitmore as the source for the anonymous complaint, Bryan Ory, the site’s general
manager, who was Whitmore’s immediate supervisor at Yager, acted differently toward him. Tr.
1

This section of the Court’s decision and order represents a more detailed summary of
the hearing testimony and is derived from what the Court determined to be the salient evidence
for the limited nature of the issue to be resolved in this hearing. It is not intended as a substitute
for the entirety of the transcript. The parties were all provided with a copy of the transcript on the
morning of July 30, 2020, the day following the hearing.
2

According to Whitmore, “Yager Materials never had a maintenance manager for that
site since 1954, approximately, whenever they started mining there.” Tr. 64. Once Carmeuse
acquired Yager, they determined it “necessary to have a maintenance manager on-site,” and he
was the first maintenance manager hired for that mine. Tr. 64-65. It was Whitmore’s
understanding that Bryan Ory, the site’s general manager, had worked at Yager for some 32
years. Tr. 65.
3

Yager Materials, at both its surface and underground facility, produces limestone. Tr.
78. The operation is located in Battletown, Kentucky. Tr. 20.

42 FMSHRC Page 642

21, 25. Whitmore presented credible examples to support his claim that Ory treated him
differently upon his return to work following his medical leave. E.g. Tr. 28.
During April 2020, Whitmore raised safety issues with Yager. The first was his concern
that a contractor working on-site was not complying with the mine’s COVID-19 restrictions and
protocols. Tr. 28. Those protocols were put in place by Yager’s parent company, Carmeuse. Id.
He emailed his concern about this to Jenn Carnley, Respondent’s office manager, and a human
resources employee, described as a “HR generalist.” Tr. 29. Several other Yager personnel were
included in Whitmore’s email to Carnley, including Bryan Ory. Ex. C 1 and Tr. 30. Following
that, Whitmore had a face-to-face discussion with Ory about this issue. Tr. 31.
A separate instance occurred on April 17, 2020. This involved the Complainant’s
assertion that there was a near miss accident while he was driving in the company’s pickup truck
as he came upon a haul truck using the same road. According to Whitmore’s account which, for
purposes of this hearing, the Court finds to have been credible, a 70 to 75 ton haul truck was
speeding on the road and upon hitting a dip in the road, large pieces of aggregate (limestone ore)
fell off the haul truck, narrowly missing hitting Whitmore’s vehicle. Tr. 32. Following that event,
Whitmore drove to Ory’s office and related the event to him, including his suggestions to remedy
the safety issue he perceived. Tr. 33. Whitmore contended that Ory acted disinterested about the
matter. Whitmore also emailed others within the Respondent’s chain of authority about this
event. Tr. 34-35 and Ex. C 2, C 3, C 4, and C 5.
Whitmore then identified another safety concern he raised with Yager. This also occurred
in April 2020. Tr. 41, Ex. C 6. This matter involved maintenance concerns and his
recommendation that equipment with safety issues should be taken out of service until repairs
were made. In conjunction with this issue, Whitmore created a spreadsheet identifying safety
deficiencies with particular pieces of equipment. This spreadsheet included some handwritten
additional safety concerns involving inadequate steering control on loaded trucks. Ex C 6, with
Whitmore’s signature on the exhibit and dated April 21, 2020. That document was created
entirely by Mr. Whitmore, including the handwritten notes on it. Tr. 76-77. Whitmore testified,
again the Court finding his testimony to have been credible, in the context of this temporary
reemployment proceeding, that he reported this to Ory, placing it on his desk. Tr. 41-42. The
report Whitmore created was not an isolated instance, as he presented similar such reports “every
couple of weeks.” Tr. 42. The next day Whitmore found the spreadsheet returned to his desk,
with no comment from Ory. Tr. 43. Whitmore informed the Court that reviewing the preshift
notes and deficiencies were part of his job. Tr. 44. Whitmore provided credible detail about the
nature of the safety issues he identified in that spreadsheet. Tr. 45-50.
Following the safety concerns expressed by Whitmore, as described above, on April 23rd,
that is to say, two days after the spreadsheet was presented to Ory, Whitmore was instructed by
Lisa Wellman to be in Ory’s office for a telephone conference that day. Tr. 51. During that
conference Wellman raised questions about Whitmore’s interaction with a new employee, who
was identified for purposes of this hearing and with the agreement of all parties only as “Mike.”
Whitmore was Mike’s direct supervisor. Tr. 77. Focusing upon the only issue of potential
pertinence to this proceeding was the Respondent’s interest as to whether Whitmore had spoken
to Mike on the issue of whether the new employee’s probationary period could be extended.

42 FMSHRC Page 643

Whitmore denied ever discussing that subject with Mike. 4 Tr. 55. The upshot of the telephone
conversation was that Whitmore was informed he was suspended for three days, “[p]ending an
investigation of conversations [that he, Whitmore] had with Mike.” Id. The suspension began on
April 23rd. Tr. 56. Subsequently, Whitmore was told to appear at Yager’s Owensboro corporate
office on April 29th. Several Yager management persons were at the meeting, including Ory, who
was present, via computer, from Battletown. Tr. 57-58. Lisa Wellman directed the meeting, and
informed the Complainant that he was being terminated. Tr.58. According to Whitmore, he could
not get an answer as to reason for his firing but eventually Wellman, as Whitmore related her
response to him, informed him that “management cannot say to an employee “what [he
Whitmore allegedly] said [to Mike] and they determined that was unacceptable and that was
grounds for my dismissal.” Tr. 58-59, reflecting Whitmore’s recounting of Wellman’s reason for
his firing. Following that, he was on that day given his termination letter, a severance document
and informed that he had 21 days to respond to it. Tr. 59. Whitmore did not sign the agreement
presented to him by Yager. Id.
Both at the time of the testimony under cross-examination of Mr. Whitmore and upon
review of the transcript of that cross-examination, (Tr. 78- 97), and recalling that the Respondent
has advanced in its defense the single claim that Whitmore made inappropriate remarks about the
probationary period for the employee identified as “Mike,” the Court has concluded that only the
following has relevance to this proceeding seeking temporary reinstatement. Whitmore was
questioned by Respondent about his duties as maintenance manager and in particular about
Exhibit C 6 which, it will be recalled, involved alleged safety issues Whitmore recorded on that
exhibit. Though that exhibit listed “up” for each equipment issue, the term being used to declare
that the equipment was still being operated, Whitmore stated that he lacked authority to tag out
equipment, making it unavailable for service. The Court finds that the Respondent’s line of
questioning regarding the equipment Whitmore listed with deficiencies did not advance the
Respondent’s attempts to diminish the information contained in that exhibit. Whitmore added
that while he tagged out a lot of equipment, beyond the equipment listed in Ex. C 6, “in most
cases the tags were disregarded and the equipment was run anyway.” Tr. 84. It is noted that the
Respondent presented no evidence in its case on rebuttal to challenge Whitmore’s claim on that
score.
Challenged by Whitmore’s private counsel as to the Respondent’s line of questioning
about Ex. C 6 and Respondent’s Counsel’s admission that such questions were directed to
Whitmore’s veracity about the information in that exhibit, Whitmore’s private counsel noted that
credibility findings are not within the ambit of a temporary reinstatement proceeding.
Respondent’s Counsel differed on that score, contending that the views of two Commissioner’s
in Shaffer v. Marion County, 40 FMSHRC 39, (Feb. 2018) (“Shaffer”) supported the line of
questioning. The Court ruled by noting again that the Respondent’s defense had been limited to
the claim that Whitmore had made inappropriate remarks to Mike in connection with that
employees probationary period. The Court then noted its view that the expressions s of any two
Commissioners has no precedential value. Tr. 87-88. More will be said about Shaffer in the
discussion regarding conclusions of law, infra. The Court also agreed that credibility
determinations must await the full discrimination action.
4

In later testimony, as discussed infra, Yager employees arrived at a different conclusion,
determining that, in their view, Whitmore had raised the topic with Mike.

42 FMSHRC Page 644

However, the Court permitted Respondent’s attorney some leeway to continue that line of
questioning on the basis that “the rule itself [addressing temporary reinstatement proceedings, at
29 C.F.R. § 2700.45(d)] says that 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. Tr. 88. Thus given limited
leeway to proceed, the Court finds that in the few questions that followed, the Respondent made
no headway on that score to advance the contention that Whitmore’s complaint was frivolous. 5
The Court elaborated on this subject with the following remark:
The issue with reference to C6 might be the subject of a full hearing on
discrimination, but really, for purposes of this proceeding it is just whether the
respondent was aware that Mr. Whitmore created this document. And his
testimony was, if I have it correct, that he created this document, put that and
others on the desk of Mr. Ory, and so that's the limited focus. Not whether, in fact,
a backup alarm, reverse lights were fixed and not whether the lights that were out
were corrected. The same is true for the question [Respomdent’s Attorney] just
asked about documentation and training. The subject for this hearing [in the
context of this line of questioning is] did the complainant raise issues with Yager
about training and about documentation of the training. Not into the particulars of
that. That is further down the road. So that's my ruling on that and so you can
proceed on to something else.
Tr. 92.
When Respondent’s Counsel questioned Whitmore about whether, in Ex. C 1, he
specifically raised the subject of social distancing in connection with the COVID 19 pandemic,
in that email, the Court noted that while those words were not expressly in the email, it was
clearly the import of the message. When next asked if he received a response to that email, over
an objection to the question by the Secretary’s attorney, the Court allowed the question but
observed that:
for purposes of the temporary reinstatement application, A, the respondent has not
alleged that had anything to do with Whitmore's termination. Another point is any
employee, Mr. Whitmore doesn't have to be making a safety complaint or safety
issue about those within his particular ambit, in other words those people that
work directly under him or not. If I'm electrician at a mine, which is a shocking
suggestion, but if I were and I make a complaint about someone who has a totally
different job doing something, I can still make that complaint to management or I
can make an anonymous call. It doesn't have to be something that's in my circle of
authority. So, again, I come back to the point the issue in C1 is that Mr. Whitmore
transmitted this message to Jenn Carnley and that's the extent of it.

5

Similarly, the Court finds that the Respondent made no advances to establish
frivolousness, when Whitmore was asked about his anonymous complaint regarding inadequate
training and insufficient documentation of such training. Tr. 89-90.

42 FMSHRC Page 645

Continuing, the Court noted that:
[h]ow they respond to [my electrician making a safety complaint example] gets
far afield to what [the Court has] to determine in the narrow scope of this
proceeding.” [As applied here], “[d]id Mr. Whitmore send this email. Doesn't
seem to be any challenge about that. So he communicated this concern and I think
beyond that, when we get into issues about well, what did the respondent do about
that, that, in my view, gets into the question of a full discrimination proceeding
and for determination perhaps in such a proceeding if that occurs. That's my
ruling on that. It is far afield.
Tr. 95-96.
With Respondent’s Counsel expressing that he was unsure where the Court’s ruling pointed, the
Court then added,
[i]t leaves you, I'm not interested in this hearing, it might be very interesting in a
full discrimination proceeding, but I'm not interested in this proceeding whether
the company did something constructive in reaction to that because that wouldn't
tell me, that wouldn't instruct me that the complaint was frivolously brought and I
would also note that this was not the only issue that was raised by Mr. Whitmore.
There are numerous subjects that he raised during his direct testimony. It is
certainly not limited to this. For my purposes, … I view this as whether the
complainant issued what is effectively a complaint and a concern, safety and
health concern, and [ ] there's no challenge to that. He did communicate that.
Tr. 96.
The Secretary then rested its case and the rebuttal testimony from the Respondent
proceeded. Tr. 98. Ms. Lisa Wellman was then called by the Respondent. She is the HR manager
for Carmeuse. She reports to Melissa Croll and for any other operations within Carmeuse she
reports up through Victoria Neff. Ms. Neff is the director of HR for the field operations for
Carmeuse but she does not have responsibilities over Yager. Tr. 102-103. For Yager related
matters, Wellman reports to Ms. Croll. Tr.103. As to this Whitmore proceeding, Wellman
informed that she “conducted the investigation and ultimately made the recommendation to
Melissa Croll for [Whitmore’s] termination. Tr. 104, 113-114. Again, Respondent’s position is
that it fired Whitmore solely for his “inappropriate comments regarding extending a probationary
period for an employee with [a] medical condition.” Id. Wellman then related the alleged
circumstances regarded the claimed inappropriate comments, which comments, as have been
noted, Mr. Whitmore has denied making them. There is no purpose is an extended retelling of
Ms. Wellman’s testimony on this score. In sum, she conducted her investigation, concluded that

42 FMSHRC Page 646

Mr. Whitmore’s version was not true and on that basis he was fired.6 Wellman’s
recommendation to terminate Whitmore was made to Ms. Croll, who agreed with that outcome.
Tr. 115.
At the conclusion of Ms. Wellman’s testimony the Court took the opportunity to remark
that
for the purposes of the decision I have to make that I'm able to and I must
compartmentalize as follows: In box A, if you will, I have Mr. Whitmore's
multitude of safety and health issues which he raised. I'm not speaking to Miss
Wellman's knowledge of that. I have box A, I have all of that testimony. And then
in box B I have, if you will, the Mike issue. It seems to me that I don't have to
resolve the Mike issue in the context of a temporary reinstatement application. If I
accept for the moment that Miss Wellman knew nothing about any of this, I'm not
suggesting you did, that nobody at Yager knew anything about any of these
things, it doesn't matter for purposes of the temporary application proceeding.
What I have to find are the bare elements, which I've reviewed already and so that
would not make up, even accepted as absolutely true, that transforms Mr.
Whitmore's application into a frivolous one. That's my view of it.
Tr. 117.
Respondent then called Melissa Croll. Ms. Croll is based in Pittsburgh, PA and is
employed by Carmeuse Americas. Tr. 126. She is the vice-president of human resource for
Carmeuse Americas. Id. As pertinent to this proceeding, Ms. Croll stated that Lisa Wellman
reports to her only for Yager Materials activities. Tr. 127. Croll determines matters of employee
terminations and she approved Whitmore’s firing. Tr. 128. She stated that the termination was
merited because Whitmore’s remarks “that he made were inappropriate and illegal and was
worthy of termination.” Tr. 128. Thus, she accepted Wellman’s recommendation. Id. As with
Wellman’s testimony, Croll maintained that she knew nothing about Whitmore’s various safety
related complaints. Tr. 129.

6

Although Counsel for the Respondent, in response to an objection, that his question to
Ms. Wellman was for the limited purpose of showing that those who decided to fire Whitmore
had no knowledge of his protected activity and were only making the decision because the
Whitmore’s alleged remarks to Mike, the Court sustained the objection. The Court explained its
ruling further noting that “it's enough if I have, if I accept the veracity of the complainant's
testimony and then we have a close in time termination, which is what we have here. I do have
some evidence that he communicated some of these safety concerns via email and via his
testimony about the spreadsheet. So, … beyond that, that's all I have to have in meeting the very
low bar for whether this complaint is frivolous[ ] or not.” Tr. 110-111.

42 FMSHRC Page 647

Commission Case Law on Applications for Temporary Reinstatement
The Commission has a venerable history regarding the standard to be applied in
applications for temporary reinstatement and by virtue of that, the applicable law to be applied in
applications for temporary reinstatement has been well established. A representative example
expressing the law to be applied is set forth here:
Section 105(c) of the Act, 30 U.S.C. § 815(c), prohibits discrimination against
miners for exercising any right afforded by the Act. Under Section 105(c)(2) of
the Act, “if the Secretary finds that [a discrimination] complaint was not
frivolously brought, the Commission, on an expedited basis upon application of
the Secretary, shall order the immediate reinstatement of the miner pending final
order on the complaint.” 30 U.S.C. § 815(c)(2). The Commission has stated that
the scope of a temporary reinstatement hearing is therefore “narrow, being limited
to a determination by the judge as to whether a miner’s discrimination complaint
is frivolously brought.” Sec’y of Labor on behalf of Price v. Jim Walter Res., Inc.,
9 FMSHRC 1305, 1306 (Aug. 1987), aff’d, 920 F.2d 738 (11th Cir. 1990). This
standard reflects a Congressional intent that “employers should bear a
proportionately greater burden of the risk of an erroneous decision *637 in a
temporary reinstatement proceeding.” Jim Walter Res., Inc. v. FMSHRC, 920 F.2d
738, 748 (11th Cir. 1990).
The Commission has explained that “it is not the judge’s duty … to resolve
[[[any] conflict in testimony at this preliminary stage of proceedings.” Sec’y of
Labor on behalf of Albu v. Chicopee Coal Co., 21 FMSHRC 717, 719 (July
1999). See also, Sec’y of Labor on behalf of Shaffer v. Marion County Coal Co.,
No. WEVA 2018-117-D, 40 FMSHRC ___, slip op. at 4, 9 (Feb. 8, 2018).
Nevertheless, the Judge “need not accept testimony if it is demonstrably false,
patently incredible, or obviously erroneous.” Shaffer, slip op. at 9 (Althen,
Chairman, and Young, Comm’r). [“Shaffer”] [40 FMSHRC 39, 47].
The issues raised in a temporary reinstatement hearing are “conceptually different
from those implicated by the underlying merits” of the miner’s discrimination
claim. JWR, 920 F.2d at 744. The temporary reinstatement proceeding addresses
“whether the evidence mustered by the miner[] to date establishe[s] that [his]
complaint[] [is] nonfrivolous, not whether there is sufficient evidence of
discrimination to justify permanent reinstatement.” Id.
While an applicant for temporary reinstatement need not prove a prima facie case
of discrimination, the elements of a discrimination claim are relevant to the
analysis of whether the evidence presented satisfies the non-frivolous test. Sec’y
of Labor on behalf of Williamson v. CAM Mining, LLC, 31 FMSHRC 1085, 1088
(Oct. 2009). In order to establish a prima facie case of discrimination under the
Act, a complaining miner must present evidence sufficient to support a conclusion
that he engaged in protected activity, that he suffered an adverse employment
action, and that the adverse action was motivated at least in part by that activity.
Turner v. Nat’l Cement Co. of Cal., 33 FMSHRC 1059, 1064 (May 2011); Sec’y
of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-

42 FMSHRC Page 648

18 (Apr. 1981); Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2
FMSHRC 2786, 2799 (Oct. 1980), rev’d on other grounds, 663 F.2d 1211 (3d
Cir. 1981). The Commission has acknowledged that evidence of motivation is
frequently indirect, and has identified several “circumstantial indicia of
discriminatory intent: (i) hostility or animus toward the protected activity; (ii)
knowledge of the protected activity, and (iii) coincidence in time between the
protected activity and adverse action.” Williamson, 31 FMSHRC at 1089; Sec’y of
Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov.
1981), rev’d on other grounds, 709 F.2d 86 (D.C. Cir. 1983). The question for the
judge at this stage is whether there is a non-frivolous question as to the elements
of the case. Williamson, 31 FMSHRC at 1091.
D&H Mining, 40 FMSHRC 635, 636-637 (Mar. 19, 2018) (ALJ Miller) (“D&H”).
Recently, however, the Court has noted that two Commissioners, Commissioner William
Althen and Commissioner Michael Young, have expressed new perspectives about the standard
required in applications for temporary reinstatement. This occurred in Sec’y of Labor on behalf
of Shaffer v. Marion County Coal Co., 40 FMSHRC 39 (Feb. 2018) (“Shaffer”), wherein they
introduced the view that the “preponderance of the evidence” plays a role in temporary
reinstatements proceedings. This is new. As set forth below, in an examination by this Court of
all prior Commission level decisions, it has not been able to find and therefore has not located
any prior decision introducing that test into the temporary reinstatement analysis. In fact, as set
forth below, a Commission majority opinion, which included Commissioner Young, disavowed
consideration of engaging a preponderance test in such matters. See, Williamson v. CAM Mining,
31 FMSHRC 1085 (Oct. 2009), infra.
Here is what Commissioners Young and Althen had to say about the matter in Shaffer:
There is no presumptive right to temporary reinstatement. Rather, the
complainant’s entitlement must be established by substantial evidence, as in any
other proceeding. Only the standard that the evidence must meet is diminished.
Thus, in a discrimination case, the complainant bears the burden of proving
discrimination by a preponderance of the evidence. Sec’y of Labor on behalf of
Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (Oct. 1980),
rev’d on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d
1211 (3d Cir. 1981); Sec’y of Labor on behalf of Robinette v. United Castle Coal
Co., 3 FMSHRC 803, 817-18 (Apr. 1981). In contrast, at this early stage of the
proceedings, the Secretary has the burden of proving by a preponderance of the
evidence only that the claim is not frivolous. Sec’y of Labor on behalf of Pappus,
38 FMSHRC 137, 154 (Feb. 2016), rev’d on other grounds, CalPortland Co. v.
FMSHRC,
839
F.3d
1153
(D.C.
Cir.
2016).

42 FMSHRC Page 649

Preponderance of the evidence means the greater weight of the evidence, such
that the Secretary has demonstrated that it is more probable than not that the claim
is not frivolous. The burden of proof in a temporary reinstatement case,
therefore, contains two legal standards: “preponderance of the evidence” and
“““non-frivolous.”
As with all disputed claims, the outcome depends upon the evidence presented. If
the operator requests a hearing, the hearing is a full judicial proceeding. In
Secretary of Labor on behalf of Gray v. North Fork Coal Corp., 33 FMSHRC 27
(Jan. 2011), the Commission quoted with approval the decision of the Eleventh
Circuit regarding the nature of a temporary reinstatement hearing:
At [the temporary reinstatement hearing], the employer has the opportunity to test
the credibility of any witnesses supporting the miner’s complaint through crossexamination and may present his own testimony and documentary evidence
contesting the temporary reinstatement…. [T]he statute grants [the employer] the
right to seek an adjudication from a neutral tribunal, prior to a deprivation of its
property interest, with all the regalia of a full evidentiary hearing at its disposal.
40 FMSHRC 39 at 42 (quoting Jim Walter Res., 920 F.2d at 747-748) (emphasis
added).
We glean two points. First, a temporary reinstatement hearing or proceeding is a
full evidentiary process, albeit a greatly expedited one. The opportunity for such a
hearing satisfies the operator’s due process rights.
Second, the opportunity to test credibility identified by the Commission in Gray
would be meaningless without a genuine exposition of the evidence presented. If
versions of events diverge without dispositive proof of either, the outcome at the
reinstatement stage may not rest upon a choice between the versions, and the
miner must be reinstated. However, a Judge need not accept testimony if it is
demonstrably false, patently incredible, or obviously erroneous, because such
evidence fails to qualify as “substantial evidence” upon which a reasonable
person might rely.
Thus, all evidence relating to the adverse employment action is relevant in a
temporary reinstatement proceeding -- even that which seems directed to an
affirmative defense or rebuttal of the miner’s claim. While we agree that the
Judge should not make credibility and value determinations of the operator’s
rebuttal or affirmative defense, if the totality of the evidence or testimony admits
of only one conclusion, there is no conflict to resolve. It is the Judge’s duty to

42 FMSHRC Page 650

determine whether the claim is frivolous, in light of undisputed or conclusivelyestablished facts and inescapable inferences.
Id. at 46-47 (emphasis added).7
7

In Shaffer, Commissioner Mary Lu Jordan and now former Commissioner Robert F.
Cohen Jr. hewed to the traditional and longstanding analysis applied to temporary reinstatement
application proceeding, expressing:
“Under section 105(c)(2) of the Mine Act, “if the Secretary finds that [a discrimination]
complaint was not frivolously brought, the Commission, on an expedited basis upon application
of the Secretary, shall order the immediate reinstatement of the miner pending final order on the
complaint.” 30 U.S.C. § 815(c)(2). The Commission has recognized that the “scope of a
temporary reinstatement hearing is narrow, being limited to a determination by the [J] udge as to
whether a miner’s discrimination complaint is frivolously brought.” See Sec’y of Labor on behalf
of Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff’d, 920 F.2d 738 (11th
Cir. 1990). The “not frivolously brought” standard reflects a Congressional intent that
“employers should bear a proportionately greater burden of the risk of an erroneous decision in a
temporary reinstatement proceeding.” Jim Walter Res., Inc. v. FMSHRC, 920 F.2d 738, 748
(11th Cir. 1990).
Courts and the Commission have likened the “not frivolously brought” standard set forth
in section 105(c)(2) with the “reasonable cause to believe” standard applied in other statutes. Jim
Walter Res., Inc. v. FMSHRC, 920 F.2d 738, 747 (11th Cir. 1990) (“there is virtually no rational
basis for distinguishing between the stringency of this standard and the ‘reasonable cause to
believe’ standard”); Sec’y of Labor on behalf of Ward v. Argus Energy WV, LLC, 34 FMSHRC
1875, 1877 (Aug. 2012) (other citations omitted). The Commission has noted that in the context
of a petition for interim injunctive relief under the National Labor Relations Act (“NLRA”), 29
U.S.C. § 160(j), courts have recognized that establishing “reasonable cause to believe” that a
violation of the statute has occurred is a “relatively insubstantial” burden. Argus Energy, 34
FMSHRC at 1878 (citing Schaub v. W. MI Plumbing & Heating, Inc., 250 F.3d 962, 969 (6th
Cir. 2001). The Commission stated that in Schaub, “the Court explained that the proponent ‘need
not prove a violation of the NLRA nor even convince the district court of the validity of the
Board’s theory of liability; instead he need only show that the Board’s legal theory is substantial
and not frivolous.”’ Id. (citations omitted). It noted that the Court cautioned:
An important point to remember in reviewing a district court’s
determination of reasonable cause is that the district judge need not resolve
conflicting evidence between the parties. See Fleischut [v. Nixon Detroit Diesel,
Inc., 859 F.2d 26, 29 (6th Cir. 1988)] (stating that the appellant’s appeal did not
seriously challenge whether reasonable cause exists; instead it simply showed
that a conflict in the evidence exists); Gottfried [v. Frankel, 818 F.2d 485, 494
(6th Cir. 1987)] (same). Rather, so long as facts exist which could support the
(continued…)

42 FMSHRC Page 651

Of course, the opinions of any two Commissioners, as with the views of Commissioners
Althen and Young recounted here, when unaccompanied by other Commission majority
decisions subscribing to such views, is of no precedential value. Commissioner Young has
observed this in The American Coal Co., 35 FMSHRC 380 (Feb. 2013) (“American Coal ”),
expressing that:
the Secretary was unable to persuade a majority of the Commission of the
propriety of that definition then, at least in Phelps Dodge flaming combustion was
the actual hazard occasioned by a stubborn grease fire ignited by cutting a piece
of mining equipment with a torch. Id. at 647. Two Commissioners rejected then
the imposition of a relevant broader definition, in part based on a reasonable
concern about unintended consequences. See id. at 663 (Duffy and Young,
concurring) (“Far-ranging conclusions, not necessary to the disposition of issues
presented to the reviewing court in one case, may, ironically, end up constricting
7

(…continued)

Board’s theory of liability, the district court’s findings cannot be clearly
erroneous. Fleischut, 859 F.2d at 29; Gottfried, 818 F.2d at 494.
Id. (citations omitted).
Similarly, at a temporary reinstatement hearing, the Judge must determine “whether the
evidence mustered by the miner[] to date established that [his or her] complaint[] [is]
nonfrivolous, not whether there is sufficient evidence of discrimination to justify permanent
reinstatement.” JWR, 920 F.2d 744. As the Commission has recognized, “[i]t [is] not the
[J]udge’s duty, nor is it the Commission’s, to resolve the conflict in testimony at this preliminary
stage of proceedings.” Sec’y of Labor on behalf of Albu v. Chicopee Coal Co., 21 FMSHRC 717,
719 (July 1999). The Commission applies the substantial evidence standard in reviewing the
Judge’s determination. Sec’y of Labor on behalf of Bussanich v. Centralia Mining Co., 22
FMSHRC 153, 157 (Feb. 2000).
While an applicant for temporary reinstatement need not prove a prima facie case of
discrimination, it is useful to review the elements of a discrimination claim in order to assess
whether the evidence at this stage of the proceedings meets the non-frivolous test. CAM Mining,
LLC, 31 FMSHRC 1085, 1088 (Oct. 2009). In order to establish a prima facie case of
discrimination under section 105(c) of the Mine Act, a complaining miner bears the burden of
establishing (1) that he engaged in protected activity and (2) that the adverse action complained
of was motivated in any part by that activity. Sec’y of Labor on behalf of Pasula v. Consolidation
Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev’d on other grounds, 663 F.2d 1211 (3d Cir.
1981); Sec’y of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803 (Apr.
1981). The Commission has identified the following indicia of discriminatory intent to establish
a nexus between the protected activity and the alleged discrimination: (1) knowledge of
protected activity; (2) hostility or animus toward the protected activity; (3) coincidence in time
between the protected activity and the adverse action; and (4) disparate treatment of the
complainant. CAM Mining, 31 FMSHRC at 1089 (other citations omitted).” Shaffer at 41-43.

42 FMSHRC Page 652

the court’s discretion in subsequent cases where the facts may be significantly
different.
Id. at 390 (Commissioner Young, concurring in part and dissenting in part) (emphasis added).8
The Court’s Research of Commission Case Law on Applications for Temporary
Reinstatement and the Term “preponderance of evidence.”
The Court’s research revealed fifteen (15) cases where the phrase “preponderance of
evidence” was expressed, but only in Shaffer has the term been employed to an applicant for
temporary reinstatement. What follows are the cases uncovered by the Court’s review.
In Cobra Natural Resources, LLC, 35 FMSHRC 394 (Feb. 2013), a temporary
reinstatement proceeding, the Commission employed the phrase, but in the context of an
operator affirmatively proving that a layoff justifies tolling temporary reinstatement by a
preponderance of the evidence. Id. at 397 (citing Gatlin, 31 FMSHRC at 1055).
In KenAmerican Resources, 31 FMSHRC 1050 (Oct. 2009), also a temporary
reinstatement proceeding, the issue of whether the duration of a temporary reinstatement should
be modified was involved. There, the Commission instructed that the judge “should determine
whether [the mine operator] KenAmerican has proven by a preponderance of the evidence that
the occurrence of the layoff is a legitimate reason for tolling Mr. Gatlin’s economic
reinstatement. … In sum, in order to justify termination of economic reinstatement,
KenAmerican must prove by a preponderance of the evidence that Mr. Gatlin’s inclusion in the
layoff was entirely unrelated to his protected activities.” Id. at 1055 (emphasis added).9
8

By analogy, this is in keeping with the somewhat related concept that where two
Commissioners vote to grant a motion and two to deny, the original decision stands. See, e.g.,
Sec'y of Labor on behalf of McGary v. Marshall County Coal Co., 40 FMSHRC 767, 768 (June
28, 2018) (Commissioners Jordan and Cohen, in favor of denying the stay and then Acting
Chairman Althen and Commissioner Young, in favor of granting the stay).
9

A few of the cases found by the Court have been relegated to this footnote as follows.
In the temporary reinstatement proceeding in North Fork Coal Corp., 33 FMSHRC 27 (Jan.
2011), a majority of the Commission held that the miner’s reinstatement was not dissolved
following the Secretary of Labor’s decision to not pursue the full discrimination proceeding.
The miner, however, as permitted under the statutory scheme, then filed his own action under
section 105(c)(3). Commissioners Young and former Commissioner Duffy dissented on that
outcome, but as it pertains to this review, “preponderance of the evidence” only arose in the
context of those dissenting commissioners referring to the Secretary’s burden of proof in the full
discrimination proceeding. Id. at 55. In Lehigh Cement Co., 2020 WL 4366183 (July 2020), a
unanimous Commission concluded that the judge erred in tolling a miner’s economic
reinstatement. Here again, although the phrase “preponderance of the evidence” was invoked, it
was to point out that “[o]perators bear the burden of showing by a preponderance of the
evidence that tolling is justified.” Citing, Sec’y of Labor on behalf of Ratliff v. Cobra Natural
(continued…)

42 FMSHRC Page 653

In C.R. Meyer and Sons Co., 35 FMSHRC 1183 (May 2013), yet another temporary
reinstatement proceeding, the question of tolling the reinstatement obligation was again
involved. The phrase “preponderance of the evidence” arose there, but again only in the context
of the mine operator’s burden, with the Commission stating “[s]hould the Secretary fail to
sufficiently establish the possibility that any inclusion of Rodriguez in the layoff might have
been motivated by the miner’s protected activity, the judge must then consider the entire record
and determine whether the operator has proven by a preponderance of the evidence that the
layoff of local miners, … justifies tolling its obligation to temporarily reinstate [the miner].” Id.
at 1188 (emphasis added).
In the temporary reinstatement proceeding of CalPortland, 38 FMSHRC 137, (Feb.
2016), a Commission majority affirmed the miner’s temporary reinstatement. In that case
Commissioner Althen dissented on grounds not pertinent to this review of cases, referring to the
“preponderance of the evidence,” but his remark was in the context of a full discrimination
proceeding, that “if the Secretary or [the miner] can prove by a preponderance of evidence that
CalPortland refused to hire [the miner] based on protected activity, [the miner] will be entitled
to full relief under section 105(c). Id. at 148, n. 1
Sec’y of Labor obo Williamson v. CAM Mining, 31 FMSHRC 1085 (Oct. 2009), is yet
another temporary reinstatement matter but it is of particular importance regarding the
preponderance of evidence applicability in such matters. There, an administrative law judge
denied reinstatement, a decision the Commission reversed and for which it ordered the
immediate reinstatement of the miner. Pointedly all four members then composing the
Commission, which group included Commissioner Young, stated: “we note that evidence that
Williamson was discharged for unprotected activity relates to the operator’s rebuttal or
affirmative defense. In essence, the judge weighed the operator’s rebuttal or affirmative defense
evidence against the Secretary’s evidence of a prima facie case. In doing so, the judge erred by
assigning a greater burden of proof than is required. In a temporary reinstatement
proceeding, the Secretary need not establish a prima facie case of discrimination by a
preponderance of the evidence. Rather, the Secretary was required to prove only that a

9

(…continued)

Res., LLC, 35 FMSHRC 394, 397 (Feb. 2013). Id. at *3 (emphasis added). Note, in a related
Lehigh Cement Co. case, 2020 WL 4366184 (July 2020), distinctive only in that a different
docket number was involved, the same result was reached. In Robinette v. United Castle Coal, 3
FMSHRC 803, (April 1981), the Commission remanded to address an aspect of the
discrimination issue. For the purposes of this review, the phrase “burden of proof” only arose in
a footnote analogy concerning unfair labor practices in NLRB matters and therefore is of no
consequence to this review. Id. at 818, n. 20. Last, in Contractors Sand and Gravel, 20
FMSHRC 960, (Sept. 1998), that case too is only tangential to this review because its thrust
concerned the recovery of attorney’s fees and expenses under the Equal Access to Justice Act.
In speaking to that issue, the Commission found that the Secretary’s position had a reasonable
basis in fact and rejected the contention that the Secretary had to establish its position under the
preponderance of evidence standard. Id. at 973.

42 FMSHRC Page 654

non-frivolous issue exists as to whether Williamson’s discharge was motivated in part by
his protected activity. Id. at 1091, also citing, Chicopee Coal Co., 21 FMSHRC at 719
(emphasis added).
In Reading Anthracite, 22 FMSHRC 298, (Mar. 2000), involved was a review by the
Commission vacating a judge’s determination that Reading did not violate the Act’s section
10(c) discrimination provision. There the miner had been previously temporarily reinstated.
Reference to the preponderance of the evidence appears only in the dissent. However, the dissent
was somewhat atypical because the dissenting commissioners agreed that the judge erred; their
dissent was that it was unnecessary to send the matter back to the judge and that the judge’s
decision could simply be reversed, finding in favor of the complainant miner. The dissenting
commissioners reminded that the mine operator, “Reading must prove its affirmative defense by
a preponderance of the evidence,” Id. at 314, citing (Sec’y of Labor on behalf of Price v. Jim
Walter Resources, Inc., 14 FMSHRC 1549, 1556 (Sept. 1992)). (“Price and Vacha”).
Speaking of Price and Vacha, four members of the Commission, affirming the judge’s
decision upon remand that Jim Walter Resources discriminatorily applied its drug program
against the complainants, referred to the “preponderance of the evidence” but in the context of
the mine operator’s burden in its affirmative defense, stating: “[a]n operator must prove this
affirmative defense by a preponderance of the evidence. E.g., Eastern Associated Coal, 813 F.2d
at 642.” 14 FMSHRC 1549 at 1556.
In Sec’y of Labor on behalf of Bernardyn v. Reading Anthracite, 23 FMSHRC 924, (Sept.
2001), the Commission again remanded the matter to the administrative law judge, after that
judge again found no violation of section 105(c)(1). This decision reiterates the point made in
Price and Vacha, and cites to that decision for the principle that in order “[t]o make out its
affirmative defense, the operator must prove by a preponderance of the evidence that it would
have taken the adverse action in any event because of unprotected activity alone. Id. at 929.
(emphasis added).
Hopkins County Coal, 38 FMSHRC 1317 (June 2016) is yet another decision by the
Commission which refers to the phrase “preponderance of the evidence,” but its use is not of
value to this discussion, as it employed the phrase only in the context of the Secretary’s burden
to establish the validity of a section 104(b) order, a burden which the Secretary met. The
discrimination matter involved a separate dispute. It involved violations which were issued in
response to the mine’s refusal to release personnel records to inspectors as part of an MSHA
discrimination investigation, records which the Secretary sought in order to determine whether
there was a violation of the anti-discrimination provisions of the Act. Three commissioners,
which is to say a majority, affirmed that the order was validly issued. Commissioners Althen and
Young dissented, but they made no mention to the preponderance of the evidence, although they
believed that the Secretary “utterly failed to carry his burden of proof of showing a reasonable
basis for the document demand.” Id. at 1338. In making no mention of the burden of proof, even
when they were referencing temporary reinstatements, the dissenters, Commissioners Althen and
Young, described for that process that “MSHA’s preliminary investigation “must determine only
whether there may be validity to the miner’s claim, or in other words, that the claim was ‘not
frivolously brought.” Id. at 1344, n.9. (emphasis in original).

42 FMSHRC Page 655

From the foregoing, it can be seen that invoking “preponderance of the evidence” in the
context of an application for temporary reinstatement has no place in the determination of
whether a claim is not frivolously brought. Even the Commission itself, through the vehicle of a
majority opinion, has acknowledged this to be the case. Sec’y of Labor on behalf of Williamson
v. Cam Mining, 31 FMSHRC 1085 (Oct. 2009), supra. This makes sense as a general matter as
well, since establishing a fact by a preponderance of the evidence means to prove that the fact is
more likely true than not true. Fischl v Armitage, 128 F.3d 50, 55 (2d Cir. 1997). That burden is
decidedly not required in a temporary reinstatement proceeding. In fact, it is inappropriate to
engage in such determinations. Mixing the concepts of “not frivolously brought” with
“preponderance of the evidence” is inappropriate, as they are mutually exclusive concepts in the
context of temporary reinstatement applications and doing so introduces a layer of consideration
which can only invite conflict.10
Summary of the Court’s Conclusions and Findings Regarding Complainant William R.
Whitmore’s Application for Temporary Reinstatement
The Court finds that the credible evidence adduced during the temporary reinstatement
hearing established, writ large, that William Whitmore’s application for temporary reinstatement
was not frivolously brought. 11 Mr. Whitmore’s testimony was not demonstrably false, nor
10

Although the Court’s exposition of the Commission’s case law regarding temporary
reinstatement is dispositive, it is noted that in other non-mine safety and health matters, courts
have eschewed comingling the concepts of preponderance of evidence and frivolousness. For
example, in National Labor Relations matters pertaining to temporary injunctive relief, the 5th
Circuit observe that it was not their duty at that “juncture to pass upon whether violations have
been established by a preponderance of the evidence, but merely to decide that the Board’s
theories are substantial and not frivolous.” Boire v. Pilot Freight Carriers, Inc., 515 F.2d 1185,
1191 (5th Cir. 1975).
11

The Court received a “Post-Hearing Statement” from the Respondent. (“R’s
Statement”). The parties representing the Complainant were given an opportunity to respond and
declined to do so. The Court finds that the Complainant’s representatives’ decision to not
respond is understandable, given the record testimony. Further, the body of this decision ordering
Mr. Whitmore’s immediate reinstatement effectively addresses the contentions raised by the
Respondent. However, the Court makes the following additional comments about the R’s
Statement. Respondent raises two challenges in an attempt to show that the application is
frivolous. First, Respondent contends that Complainant’s April 6, 2020 email expressing his
concern about a contractor employee and whether that individual was practicing social distancing
in light of COVID 19 did not constitute protected activity. R’s Statement at 5. The Court does
not agree. The Court refers the reader to the transcript summary above. By raising his concern,
the Complainant was voicing a health concern, which constitutes protected activity. The
Respondent then states that such a concern may be analogized to a protected work refusal. Id.
From that argument, the Respondent seems to argue that a miner’s expressed health concern,
when not specifically covered by a standard, evaporates once the miner has been given
reassurance about the concern. The analogy does not hold up; Whitmore did not make a work
(continued…)

42 FMSHRC Page 656

patently incredible, nor obviously erroneous. The Court finds that the testimony mustered by
Whitmore presented evidence sufficient to support a conclusion that he engaged in protected
activity, that he suffered an adverse employment action, and that the adverse action was
motivated at least in part by that activity and in light of that, established that his complaint was
not frivolously brought.12
The Application for Temporary Reinstatement is hereby GRANTED. Immediately upon
receipt of this decision Respondent is ORDERED to reinstate Complainant William R.
Whitmore to his former position at the mine, or to a comparable position within the same
commuting area at the same rate of pay and benefits he received prior to his discharge, pending a
final Commission order on the discrimination complaint. The court retains jurisdiction over this
temporary reinstatement proceeding. 29 C.F.R. § 2700.45(e)(4).

11

(…continued)
refusal in connection with his expressed health concern. Further, expressing his concern was
protected activity and its status as such remained so, even if the employer addressed it.
Respondent’s second contention is that without showing that the Respondent’s decisionmakers, meaning the two individuals who decided to fire the Complainant, knew of, that is to say
“had knowledge of” Whitmore’s several instances of protected activity, the complaint is
frivolous. Respondent asserts that the only evidence of record is that the two individuals who
decided to fire Whitmore testified that they knew nothing of his protected activities and
terminated him solely on another basis, as described above in the body of this decision. As such,
Respondent asserts that, their decision being pure of any protected activity knowledge, makes
Whitmore’s complaint frivolous. Id. 7-9. As the discussion of the applicable case law, set forth
above, makes clear, the temporary reinstatement application proceeding may not be based on
such claims, as it would transform the proceeding into resolving conflicts in testimony. Such a
conflict is plainly present. A conflict can exist in less direct forms than a contention and a denial.
Thus, the mere assertion by two witnesses maintaining certain factual contentions, even if not
specifically denied, can still present a conflict, when viewed from the perspective of the entire
record. In short, a conflict can exist in more subtle forms than an assertion and a parallel denial.
At this stage, made for the purpose of determining only non-frivolity, it is not required for the
Complainant to establish that the two individuals made their decision on grounds beyond their
claimed basis. Instead, again as plainly described above, the Complainant established multiple
instances of protected activity, each of which the Court found to be have been communicated,
that he suffered the adverse action of termination, and that such termination occurred within a
short period of time following expression of his safety and health concerns. “Requiring the Judge
to resolve alleged inaccuracies and conflicts in testimony when the parties have not yet
completed discovery would improperly transform the temporary reinstatement hearing into a
hearing on the merits.” Sec. obo Deck v FTS Int’l, 34 FMSHRC 2388, 2391 (Sept. 2012), citing
Chicopee Coal, 21 FMSHRC at 719; CAM Mining, 31 FMSHRC at 1088-89.
12

It is worth restating that in the context of an application for temporary reinstatement
the test is not whether there is sufficient evidence of discrimination to justify permanent
reinstatement.

42 FMSHRC Page 657

Per 30 U.S. Code § 815, titled, “Procedure for enforcement,” and in particular, subsection
(c)(3) of the section, the Secretary is directed to comply with that provision which commands
that “[w]ithin 90 days of the receipt of a complaint filed under paragraph (2)[of subsection (c)],
the Secretary shall notify, in writing, the miner, applicant for employment, or representative of
miners of his determination whether a violation has occurred.” (emphasis added). The Secretary
shall diligently pursue completion of the investigation in the underlying discrimination
complaint. Immediately upon completion of the investigation, the Secretary SHALL notify
counsel for Yager Materials Corp. and this court, in writing, whether a violation of Section
105(c) of the Mine Act has occurred. The Court considers the Secretary’s duty to comply with
this provision to be of high importance. The mine operator’s rights in defending against the
discrimination claim are significantly affected by delays in meeting this statutory deadline.
SO ORDERED.

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

Distribution:
Thomas J. Motzny, Esq., 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, Esq., P.O. Box 22446, Lexington, KY 40522 tonyoppegard@gmail.com
Wes Addington, Esq., Appalachian Citizens’ Law Center, 317 Main Street, Whitesburg, KY
41858 wes@aclc.org
Arthur M. Wolfson, Esq., Fisher & Phillips, LLP, Six PPG Place, Suite 830, Pittsburg, PA 15222
awolfson@fisherphillips.com

42 FMSHRC Page 658

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
721 19th ST. SUITE 443
DENVER, CO 80202-2500
TELEPHONE: 303-844-5266 FAX: 303-844-5268

August 7, 2020
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 2013-0211
A.C. No. 15-17741-305075

v.
KENAMERICAN RESOURCES, INC.,
Respondent

Mine: Paradise #9

DECISION ON REMAND
Before: Judge Miller
This case is before me upon petition for assessment of a civil penalty filed by the
Secretary of Labor pursuant to Section 105(d) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 815(d) (“the Act”). This case was remanded by the Commission to determine
an appropriate civil penalty for Citation No. 8502992, issued pursuant to Section 103(a), with a
total proposed penalty of $18,742.00.
I. HISTORY OF THE CASE
This case was originally assigned to Administrative Law Judge L. Zane Gill. On July 24,
2015, KenAmerican Resources (“KenAmerican”) filed a motion for summary judgment, alleging
that the Secretary’s claims were unsubstantiated and that there was no violation of section 103(a)
of the Mine Act. That section of the act, states in pertinent part that “no advance notice of an
inspection shall be provided to any person,” 30 U.S.C. § 813. KenAmerican’s motion was
granted and the citation was vacated. Sec’y of Labor v. KenAmerican Resources, Inc., 37
FMSHRC 1809 (Aug. 2015) (ALJ). On August 25, 2016, following a petition for discretionary
review, the Commission found that the summary decision was improper and reversed and
remanded the case with instructions to hold a hearing. Sec’y of Labor v. KenAmerican
Resources, Inc., 38 FMSRC 1943 (Aug. 2016). After an evidentiary hearing of the case, Judge
Gill issued a decision on December 14, 2018, finding that the Secretary failed to establish a
violation. Sec’y of Labor v. KenAmerican Resources, Inc., 40 FMSHRC 1544 (Dec. 2018) (ALJ).
Following Judge Gill’s decision, the Commission granted the Secretary a second petition
for discretionary review. After briefing and argument, the Commission determined that a
violation had occurred as set forth in the citation issued by the Secretary and determined that the
case should be remanded for the assessment of a penalty consistent with section 110(i) of the
Act. 30 U.S.C. § 821(i). The Commission decision constitutes the law of the case. See Pepper

42 FMSHRC Page 659

v. United States, 131 S. Ct. 1229, 1250 (2011). Following the unexpected passing of Judge Gill
on June 23, 2020, this case was reassigned to determine the appropriate penalty. For the reasons
set forth below, I assess the penalty in the amount proposed by the Secretary.
II. ISSUE ON REMAND
On April 20, 2012, MSHA Inspector Doyle Sparks and six other inspectors traveled to
KenAmerican’s Paradise #9 mine to conduct an investigation in response to a complaint of an
alleged hazardous condition. Before the inspectors traveled into the mine to begin their
investigation, MSHA inspectors instructed the miners on the surface not to warn underground
personnel that MSHA inspectors were present. While inspector Sparks monitored the mine’s
communication system, he heard an exchange between two miners that appeared to be providing
advance notice to the miners underground. Sparks overheard a call from the #4 unit in which a
miner asked the dispatcher if there was “company outside,” to which the dispatcher responded,
“yeah, I think there is.” Tr. 23-24, 163-164. Sparks asked the underground miner to identify
himself, but received no response. Once underground, Sparks made a second attempt to identify
the miner, but again received no response. The Commission found that Holz, the dispatcher,
agreed that a miner asked him if “company” was outside and that he understood the unidentified
miner’s question to be an inquiry into the presence of MSHA inspectors. “Therefore, he knew
the question presented a request for advance notice.” Sec’y of Labor v. KenAmerican Resources,
Inc., 42 FMSHRC 1, slip op. at 2, No. KENT 2013-0211 (Jan. 16, 2020).
Sparks issued Citation No. 8502992 to Respondent pursuant to Section 103(a) of the
Mine Act alleging that mine personnel provided advance notice to underground miners that
MSHA inspectors were on site during a hazard complaint inspection. Tr.10. Section 103(a) of the
Mine Act authorizes the mine inspectors to conduct inspections and investigations of coal and
other mines. This section also requires that “In carrying out the requirements of this subsection,
no advance notice of an inspection shall be provided to any person….” Similarly, a person who
provides advance notice of an inspection may face the possibility of a criminal prosecution. 30
U.S.C 820(3). The citation, after amendment, was issued as a significant and substantial violation
and the result of high negligence. The Commission upheld the citation as issued and remanded
the case solely for the assessment of civil penalty. The penalty assessment is based upon the
Commission’s decision on remand and the record in its entirety, including the hearing transcript
and the briefs filed by the parties in the case.
III. PENALTY
The principles governing the authority of Commission Administrative Law Judges to
assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i)
of the Mine Act delegates to the Commission and its judges “authority to assess all civil penalties
provided in [the] Act.” 30 U.S.C. § 820(i). Commission Judges are not bound by the Secretary’s
penalty regulations. Am. Coal Co., 38 FMSHRC 1987, 1990 (Aug. 2016). Rather, the Act
requires that in assessing civil monetary penalties, the judge must consider six statutory penalty
criteria: the operator’s history of violations, its size, whether the operator was negligent, the
effect on the operator’s ability to continue in business, the gravity of the violation, and whether
the violation was abated in good faith. 30 U.S.C. § 820(i).

42 FMSHRC Page 660

The Secretary has proposed a penalty of $18,742.00 for the violation. I have considered
and applied the six penalty criteria found in Section 110(i) of the Act. I have reviewed the history
of this operator and taken note of the fact that two mine superintendents and a foreman were
previously convicted of the crime of providing advance notice at this mine.1 I have also
considered that this is a large-sized operator, and that the parties have stipulated to the ability to
pay. No issue was raised by either party about a lack of good faith abatement.
The violation was assessed as significant and substantial and was the result of high
negligence. The Commission made no change to these findings in its decision and I accept the
findings in determining a penalty. The violation was significant and substantial, given the
importance placed on the notice requirement in the Act and that providing notice could result in a
criminal prosecution. In addition, giving advance notice allows a mine operator the opportunity
to alter violative conditions prior to the arrival of an MSHA inspector and allows the
continuation of operations under violative conditions after an inspector departs. Therefore, the
gravity of the violation is serious, and the penalty is intended to reflect that it is serious.
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 the standard occurs.”
A.H. Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983). In determining whether an operator met its
duty of care, the judge must consider “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.” Newtown, 38 FMSHRC at 2047; Brody
Mining, LLC, 37 FMSHRC 1687, 1702 (Aug. 2015); U.S. Steel Corp., 6 FMSHRC 1908, 1910
(Aug. 1984). While the Secretary’s Part 100 regulations evaluate negligence based on the
presence of mitigating factors, Commission judges are not limited to that analysis. Brody, 37
FMSHRC at 1702-03. Rather, Commission judges consider “the totality of the circumstances
holistically” and may find high negligence in spite of mitigating circumstances. Id. at 1702. The
Commission has recognized that “the gravamen of high negligence is that it ‘suggests an
aggravated lack of care that is more than ordinary negligence.’” Id. at 1703 (quoting Topper
Coal Co., 20 FMSHRC 344, 350 (Apr. 1998)).
In reviewing the record as a whole and the Commission decision, I find that the
designation of high negligence is well supported. The record clearly indicates that an affirmative
response was provided to a request for advance notice from an underground miner, even after the
inspectors warned the miners at the surface not to engage in that conduct. Management’s failure
to instruct or ensure that no advance notice was given prior to inspections constitutes more than
ordinary negligence. See Ky. Fuel Corp., 40 FMSHRC 28 (Feb. 2018) (in which the Commission
approved a judge’s decision that similarly concluded that high negligence was appropriate due
largely to an operator’s failure to provide adequate training and materials to prevent a violation).
A finding of high negligence is further supported by the circumstances surrounding the violation,
in particular the unidentified miner’s refusal to identify himself on the phone or in person when
1

See KenAmerican Resources, slip op. at 5 (Jan. 16, 2020)(noting that “two mine
superintendents and a foreman working at the Paradise No. 9 mine were previously convicted of
the crime of providing advance notice.” (citing United States v. Gibson, 409 F.3d 325, 333 (6th
Cir. 2005)).

42 FMSHRC Page 661

Sparks arrived underground and Holz’s admission that he knew he was prohibited from
providing advance notice of MSHA’s presence to underground miners.
IV. ORDER
I have reviewed the record in its entirety and find that the Secretary’s proposed penalty is
appropriate in this case. Accordingly, Respondent is hereby ORDERED to pay the Secretary of
Labor the sum of $18,742.00 within 30 days of the date of this decision.

/s/ Margaret A. Miller
Margaret A. Miller
Administrative Law Judge

Distribution: (Electronic Mail with Appeal cover sheet)
Emily Toler Scott, Ali A. Beydoun, April Nelson, U.S. Department of Labor, Office of the
Solicitor, 201 12th Street South, Suite 401, Arlington, VA 22202-5450
Scott.emily.t@dol.gov, beydoun.ali@dol.gov, nelson.april@dol.gov
Melanie Garris, U.S. Department of Labor, MSHA, Office of Civil Penalty Compliance, 201 12th
Street South, Suite 401, Arlington, VA 22202-5450, garris.melanie@dol.gov
Jason Hardin, Artmeis Vamianakis, Fabian VanCott, 215 South State Street, Suite 1200,
Salt Lake City, UT 84111-2323, jhardin@fabianlaw.com, avamianakis@fabianlaw.com

42 FMSHRC Page 662

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
721 19th ST. SUITE 443
DENVER, CO 80202-2500
TELEPHONE: 303-844-5266 / FAX: 303-844-5268

August 12, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. LAKE 2017-0450
A.C. No. 12-02295-447106

v.
PEABODY MIDWEST MINING, LLC,
Respondent.

Mine: Francisco Underground Pit

DECISION ON REMAND
Before: Judge Simonton
This case is before me upon remand from the Commission. Peabody Midwest Mining,
LLC, 42 FMSHRC___, slip. op. at 11 (June 2, 2020). It involves a petition for assessment of a
civil penalty filed by the Secretary of Labor through the Mine Safety and Health Administration
(“MSHA”) against Peabody Midwest Mining, LLC (”Peabody” or “Respondent”), pursuant to
section 104(d)(1) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. §
814(d)(1).
I.

HISTORY OF THE CASE

On July 17, 2017, MSHA issued Citation No. 9105403 to Peabody for a violation of
section 316(b) of the Mine Improvement and New Emergency Response Act of 2006 (“MINER
Act”), which requires every underground coal mine to develop a written plan to provide for the
evacuation of all individuals in an emergency and provide for the maintenance of miners trapped
underground where evacuation is not possible. 30 U.S.C. § 876(b). Peabody’s Emergency
Response Plan (“ERP”) requires two properly positioned refuge chambers, sufficient to shelter
all the miners present in the event of an emergency, even during a shift change when two teams
of 15 miners would be present. Ex. S–3. It states that refuge chambers “will not be placed in the
direct line of sight of the working face.” However, at the time of inspection, one refuge chamber
was in the travelway in the direct line of sight of the working face and in violation of the ERP.
Ex. R–A; Tr. 27–29. The inspector designated the citation significant and substantial (“S&S”),
reasonably likely to be fatal, and the result of Peabody’s high negligence and unwarrantable
failure to comply with the Mine Act. Ex. S–1. The Secretary proposed a civil penalty of
$44,546.00.
Peabody contested the S&S, negligence, unwarrantable failure designation, and the
penalty. Respondent’s Post-Hearing Brief at 10. A violation is S&S “if based upon the particular
facts surrounding the violation there exists a reasonable likelihood that the hazard contributed to
will result in an injury or illness of a reasonably serious nature.” Cement Division, National

42 FMSHRC Page 663

Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). I determined that the violation was S&S because
the Secretary proved the four elements of the Mathies test: (1) 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 in question will be of a
reasonably serious nature. Mathies Coal Co., 6 FMSHRC 1, 3–4 (Jan. 1984). In analyzing the
second criterion, I acknowledged the Commission’s recognition in past cases that “emergency
standards are different from other mine safety standards because they are intended to apply
meaningfully only when an emergency actually occurs.” IGC Illinois, LLC, 38 FMSHRC 2473,
2476 (Oct. 2016) citing Cumberland Coal Res., LP, 33 FMSHRC 2357, 2367 (Oct. 2011), aff’d
717 F.3d 1020 (D.C. Cir. 2013). Because Commission precedent directs judges to assume the
existence of a contemplated emergency when defining the hazard contributed to by a violation,
see, e.g., ICG Illinois, LLC, 38 FMSHRC at 2476, I assumed an emergency in which evacuation
was impossible and the refuge chamber was necessary.
Testimony at the hearing established that the ERP prohibits positioning the refuge
chamber in the direct line of sight of the working face because an explosion traveling out could
damage or destroy the chamber. Tr. 29–30, 84–85. In presuming the occurrence of a fire or
ignition significant enough to prevent miners from evacuating, I found that all four elements of
the Mathies test were satisfied and thus the violation was S&S. I affirmed the citation as written
and assessed a penalty of $50,000.00. 40 FMSHRC 861 (June 2018) (ALJ).
Following the issuance of my June 28, 2018 decision after hearing, Peabody appealed the
decision to the Commission. It did not contest the fact of violation or the unwarrantable failure
designation, but challenged the citation’s Significant and Substantial (“S&S”) designation. Upon
review, the Commission reversed the S&S designation. 42 FMSHRC___, slip op. at 10–11. In
doing so, it reviewed S&S precedent and restated the proper test for an S&S violation:
In order to establish that a violation of a mandatory safety standard is significant
and substantial, the Secretary of Labor under National Gypsum must prove: (1)
the underlying violation of a mandatory safety standard; (2) the violation was
reasonably likely to cause the occurrence of the discrete safety hazard against
which the standard is directed; (3) the occurrence of that hazard would be
reasonably likely to cause an injury; and (4) there would be a reasonable
likelihood that the injury in question would be of a reasonably serious nature.
Id. at 5. Because more than 15 miners were only present during shift changes when no mining
activities were occurring, the Commission determined that the one properly-placed refuge
chamber was sufficient for the contemplated emergency because an explosion was only ever
likely during mining activities. Id. at 8–10. The Commission remanded the case for reassessment
of the civil penalty in accordance with its decision.

42 FMSHRC Page 664

II.

PENALTY

It is well established that Commission administrative law judges have the authority to
assess civil penalties de novo for violations of the Mine Act. Sellersburg Stone Company, 5
FMSHRC 287, 291 (Mar. 1983). Commission Judges are not bound by the Secretary’s penalty
regulations. Am. Coal Co., 38 FMSHRC 1987, 1990 (Aug. 2016). Rather, the Act requires that
in assessing civil monetary penalties, the Commission ALJ shall consider the six statutory
penalty criteria:
(1) the operator’s history of previous violations, (2) the appropriateness of such
penalty to the size of the business of the operator charged, (3) whether the
operator was negligent, (4) the effect on the operator’s ability to continue in
business, (5) the gravity of the violation, and (6) the demonstrated good faith of
the person charged in attempting to achieve rapid compliance after notification of
a violation.
30 U.S.C. § 820(i).
I have considered and applied the six penalty criteria. In the fifteen months preceding the
issuance of this citation, Peabody averaged 0.59 violations per inspection day and had only one
previous violation of section 316(b). The mine is a large operator and the parties stipulated that
the Secretary’s proposed penalty of $44,546.00 would not affect Peabody’s ability to remain in
business. The high negligence designation was not challenged on appeal and remains unaffected
by the Commission’s decision. The Commission has determined that this violation is not S&S, so
the gravity involved is less severe than originally designated in the citation and affirmed in my
initial decision. Relatedly, as a result of the S&S designation being vacated, the violation must be
reclassified as a section 104(a) citation, which effectively removes the unwarrantable failure
determination. Peabody immediately worked to abate the condition following the issuance of the
citation. Tr. 62-63, 150, 172. However, it also admitted that the refuge chamber would have
remained in the direct line of sight of the working face for a couple of days if not for the citation.
Tr. 150.
I remain convinced that Peabody’s failure to follow its own ERP by placing a refuge
chamber in direct line of sight of the working face constitutes an extremely serious violation.
After considering the penalty criteria in light of the Commission’s decision, I find that a penalty
of $35,000 is appropriate.

42 FMSHRC Page 665

III.

ORDER

Because the citation’s S&S designation has been eliminated, it is hereby ORDERED that
Citation No. 9105403 be changed from a section 104(d)(1) citation to a section 104(a) citation.
Peabody Midwest Mining, LLC is ORDERED to pay the Secretary of Labor the sum of $35,000
within 30 days of this decision. 1

/s/ David P. Simonton
David P. Simonton
Administrative Law Judge

Distribution: (Email2)
R. Henry Moore, Fisher & Phillips, LLP, hmoore@fisherphillips.com
Arthur M. Wolfson, Fisher & Phillips, LLP, awolfson@fisherphillips.com
Andrew R. Tardiff, Office of the Solicitor, U.S. Department of Labor, tardiff.andrew.r@dol.gov

1

Please pay penalties electronically at Pay.Gov, a service of the U.S. Department of the
Treasury, at https://www.pay.gov/public/form/start/67564508. Alternatively, send payment
(check or money order) to: U.S. Department of Treasury, Mine Safety and Health Administration
P.O. Box 790390, St. Louis, MO 63179-0390. Please include Docket and A.C. Numbers.
2

For the foreseeable future, Federal Mine Safety and Health Review Commission
(FMSHRC) notices, decisions, and orders will be sent only through electronic mail. Because
FMSHRC will not be monitoring incoming physical mail or faxes, parties are encouraged to
submit all filings through the agency’s electronic filing system. If you are not able to file through
our electronic filing system, please send an email copy and we will file it for you.

42 FMSHRC Page 666