July 2021
TABLE OF CONTENTS

COMMISSION ORDERS
07-13-21

PEDROTTI MATERIALS, LLC

WEST 2020-0275-M

Page 341

07-13-21

MINGO LOGAN COAL, LLC

WEVA 2019-0320

Page 344

07-30-21

PALM BEACH AGGREGATES LLC

SE 2020-0067-RM

Page 347

ADMINISTRATIVE LAW JUDGE DECISIONS
07-14-21

WARRIOR MET COAL MINING,
LLC

SE 2020-0213

Page 351

ADMINISTRATIVE LAW JUDGE ORDERS
07-29-21

PRAIRIE STATE GENERATING CO.

LAKE 2021-0158

Page 363

07-29-21

VULCAN CONSTRUCTION
MATERIALS, LLC

SE 2021-0163

Page 365

i

Review was Denied in the Following Case During the Month of July 2021
Daniel B. Lowe v. Western Environmental Testing Laboratory, Docket No. WEST 2021-0145
(Judge Bulluck, June 16, 2021)

ii

COMMISSION ORDERS

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

June 13, 2021
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEST 2020-0275-M
A.C. No. 04-05724-505659

v.
PEDROTTI MATERIALS, LLC
BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners
ORDER
BY THE COMMISSION:
This proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2018) (“Mine Act”). On May 12, 2020, Pedrotti Materials, LLC filed a motion
seeking to reopen a penalty assessment under section 105(a) of the Mine Act, 30 U.S.C. §
815(a), that had appeared to become a final order of the Commission.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
Pedrotti asserts that it never received the proposed penalty assessment at issue because
the Secretary mailed it to the wrong address. The Secretary confirms that his Mine Safety and
Health Administration erroneously mailed the proposed assessment to an incorrect address.
Having reviewed Pedrotti’s request and the Secretary's response, we conclude that the
proposed penalty assessment did not become a final order of the Commission because the
operator never received the proposed assessment. This obviates any need to invoke Rule 60(b) of
the Federal Rules of Civil Procedure in order to consider reopening a final order.

43 FMSHRC Page 341

Accordingly, the operator's motion to reopen is moot, and this case is remanded to the
Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission's Procedural Rules, 29 C.F.R. Part 2700.

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

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

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

43 FMSHRC Page 342

Distribution:
Jason Pedrotti
Pedrotti Materials, LLC
P.O. Box 994283
Redding, CA 96099
pedrottimaterials@gmail.com
John M. McCracken, Esq.
Office of the Solicitor
U.S. Department of Labor
Mine Safety and Health Division
201 12th Street South, Suite 401
Arlington, VA 22202-5452
McCracken.John.M@dol.gov
Archith Ramkumar, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th Street South, Suite 401
Arlington, VA 22202
Ramkumar.Archith@dol.gov
April Nelson, Esq.
Office of the Solicitor
U.S. Department of Labor
Mine Safety and Health Division
201 12th Street South, Suite 401
Arlington, VA 22202-5452
Nelson.April@dol.gov
Melanie Garris
U.S. Department of Labor
Office of Civil Penalty Compliance
Mine Safety and Health Administration
201 12th Street South, Suite 401
Arlington, VA 22202-5452
Garris.Melanie@dol.gov
Chief Administrative Law Judge Glenn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, NW, Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov

43 FMSHRC Page 343

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

July 13, 2021
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEVA 2019-0320
A.C. No. 46-09029-478458

v.
MINGO LOGAN COAL, LLC
BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”). On March 18, 2019, the Commission received from Mingo
Logan Coal, LLC a motion seeking to reopen a penalty assessment that had become a final order
of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that a proposed assessment was delivered on December 3, 2018, and became
a final order on January 2, 2019. Mingo Logan asserts that there is good cause to reopen this
matter. The mine’s assistant safety manager timely prepared the proposed assessment form,

43 FMSHRC Page 344

marking ten specific citations for contest.1 However, due to an inadvertent clerical error the
completed form was not mailed. An internal audit on February 18, 2019 revealed the mistake.
After learning of the issue, the manager contacted counsel to file a motion to reopen the
proceeding.2
The Secretary does not oppose the request to reopen, but urges the operator to take steps
to ensure that future penalty contests are timely filed.
Having reviewed Mingo Logan’s request and the Secretary’s response, we find that
Mingo Logan demonstrated that its failure to timely file contest was the result of an unintentional
mistake. We find good cause, hereby reopen this matter, and remand the case to the Chief
Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the
Secretary shall file a petition for assessment of penalty within 45 days of the date of this order.
See 29 C.F.R. § 2700.28.

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

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

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

1

Citation Nos. 9175236, 9178580, 9178758, 9178759, 9178584, 9178585, 9178588,
9178589, 9175246, and 9178596.
2

Mingo Logan’s motion was accompanied by supporting affidivats signed by the
employees involved.

43 FMSHRC Page 345

Distribution:
Kelby Thomas Gray, Esq.
Dinsmore & Shohl LLP
707 Virginia Street East, Suite 1300
Charleston, WV 25301
Kelby.gray@dinsmore.com
John M. McCracken, Esq.
Office of the Solicitor
U.S. Department of Labor
Mine Safety and Health Division
201 12th Street South, Suite 401
Arlington, VA 22202-5452
McCracken.John.M@dol.gov
Archith Ramkumar, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th Street South, Suite 401
Arlington, VA 22202
Ramkumar.Archith@dol.gov
April Nelson, Esq.
Office of the Solicitor
U.S. Department of Labor
Mine Safety and Health Division
201 12th Street South, Suite 401
Arlington, VA 22202-5452
Nelson.April@dol.gov
Melanie Garris
U.S. Department of Labor
Office of Civil Penalty Compliance
Mine Safety and Health Administration
201 12th Street South, Suite 401
Arlington, VA 22202-5452
Garris.Melanie@dol.gov
Chief Administrative Law Judge Glenn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, NW, Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov

43 FMSHRC Page 346

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

July 30, 2021
PALM BEACH AGGREGATES LLC,
Docket No. SE 2020-0067-RM

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

Docket No. SE 2021-0168
A.C. No. 08-01160-510158

v.
PALM BEACH AGGREGATES LLC
BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners
DIRECTION FOR REVIEW AND ORDER
BY THE COMMISSION:
These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (the “Mine Act”). On June 10, 2020, the contest proceeding in Docket No.
SE 2020-0067-RM was dismissed as moot on grounds that the penalty assessment for the citation
at issue had become a final order. On June 12, 2020, Palm Beach Aggregates, LLC (“Palm
Beach”) filed a motion in Docket No. SE 2020-0067-RM seeking to reopen both the contest
proceeding and the related penalty assessment. We construe Palm Beach’s filing as a petition for
discretionary review of the order dismissing the contest proceeding, and a motion to reopen the
civil penalty proceeding.
Regarding the motion to reopen, under section 105(a) of the Mine Act, an operator who
wishes to contest a proposed penalty must notify the Secretary of Labor no later than 30 days
after receiving the proposed penalty assessment. If the operator fails to notify the Secretary, the
proposed penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the

43 FMSHRC Page 347

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed penalty assessment was delivered on March 17, 2020, and
became a final order of the Commission on April 16, 2020. Palm Beach asserts that internal
processing of the proposed assessment was delayed by the operator’s response to the Covid-19
pandemic. Specifically, a work-from-home policy was initiated on March 16, 2020, before the
proposed assessment arrived. As a result, the proposed assessment was not received by the
Safety Director until April 23, 2020, and was contested approximately two weeks later.
The Secretary does not oppose the request to reopen, but urges the operator to take steps to
ensure that future penalty contests are timely filed.
Having reviewed Palm Beach Aggregates’ request and the Secretary’s response, we find
that the moderate delay in contesting the proposed penalty assessment was excusable in light of
the unusual pandemic-related circumstances. In the interest of justice, we hereby reopen the
penalty proceeding. Accordingly, consistent with Rule 28, the Secretary shall file a petition for
assessment of penalty within 45 days of the date of this order.
With regard to the dismissal of the contest proceeding, we grant the operator’s timely
petition for discretionary review. 29 C.F.R. § 2700.70. The contest proceeding was dismissed as
moot on grounds that the proposed civil penalty for the citation at issue had not been properly
contested, and had therefore become a final order. As we have reopened the associated penalty
proceeding, we vacate and reverse the Judge’s dismissal order in Docket No. SE 2020-0067-RM.

43 FMSHRC Page 348

We hereby consolidate the contest and penalty proceedings, and remand this matter to the
Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700.

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

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

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

43 FMSHRC Page 349

Distribution:
Daniel A. Kaplan
Foley & Lardner LLP
150 East Gilman Street
Madison, WI 53701-1497
dkaplan@foley.com
John M. McCracken, Esq.
Office of the Solicitor
Division of Mine Safety and Health
U.S. Department of Labor
201 12th Street South, Suite 401
Arlington, VA 22202-5452
McCracken.John.M@dol.gov
Archith Ramkumar, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th Street South, Suite 401
Arlington, VA 22202
Ramkumar.Archith@dol.gov
April Nelson, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th Street South, Suite 401
Arlington, VA 22202-5452
Nelson.April@dol.gov
Chief Administrative Law Judge Glynn Voisin
Federal Mine Safety & Health Review Commission
Office of the Chief Administrative Law Judge
1331 Pennsylvania Avenue, NW, Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
201 12th Street South, Suite 401
Arlington, VA 22202-5452
Garris.Melanie@DOL.gov

43 FMSHRC Page 350

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9900 / FAX: 202-434-9949

July 14, 2021
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. SE 2020-0213
A.C. No. 01-01401-516467
Docket No. SE 2020-0232
A.C. No. 01-01401-518427

v.
WARRIOR MET COAL MINING, LLC,
Respondent

Mine: No. 7 Mine

DECISION APPROVING SETTLEMENT
ORDER TO MODIFY
ORDER TO PAY
Before: Judge McCarthy
This case is before the undersigned upon Petitions for the Assessment of Civil Penalty
under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d).
The Solicitor has filed a motion to approve settlement proposing a reduction in the penalties
from $61,707.00 to $33,035.00. Citations No. 9493251, 9493254, 9493165, 9493261, 9493263,
9493249, 9493250, 9493164, and 9493167 remain unchanged, but the Solicitor justifies the
reductions in penalties by stating there are legitimate factual and legal disputes regarding gravity
and negligence. The Solicitor also requests that
Citation No. 9493255 be modified to reduce the number of persons affected from two to
one;
Citations No. 9493257 and 9493256 be modified to reduce the likelihoods of injury or
illness from highly likely to reasonably likely and the numbers of persons affected from
two to one;
Citation No. 9493166 be modified to reduce the level of negligence from high to
moderate;
Citations No. 9133601, 9493273, 9264049, 9264050, and 9493308 be modified to reduce
the levels of negligence from moderate to low;

43 FMSHRC Page 351

Citations No. 9493031 and 9493032 be modified to reduce the expected injuries or
illnesses from fatal to permanently disabling; and
Citation No. 9230950 be modified to reduce the level of negligence from high to low.1
The Secretary also argues that “
[t]he Secretary’s use of [the 30 C.F.R. § 100.3] regular assessment tables in
settlement is a prima facie indication that the penalty reduction is fair, reasonable,
and adequate under the facts, and protects the public interest. It is appropriate to
defer to the judgment of the parties[] in arriving at a modified penalty based on
the § 100.3 tables.
Settlement Mot. at 9 (citing Vindex Energy Corp., 34 FMSHRC 223, 224 (Jan. 2012) (ALJ)).
However, not only is the Commission not bound by 30 C.F.R. § 100.3, but it is the purview of
the Commission—not the Secretary or regulations issued by the Secretary—to determine
whether a settlement is appropriate under the criteria set forth in section 110(i) of the Act.
Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151-52 (7th Cir. 1984) (“[N]either the ALJ
nor the Commission is bound by the Secretary’s proposed penalties. . . . [W]e find no basis upon
which to conclude that these MSHA [penalty] regulations also govern the
Commission.”); Hidden Splendor Res., Inc., 36 FMSHRC 3099, 3101 (Dec. 2014) (“The
Secretary’s regulations at 30 C.F.R. Part 100 apply only to the Secretary’s penalty proposals,
while the Commission exercises independent “authority to assess all civil penalties provided
[under the Act]’ by applying the six criteria set forth in section 110(i).” (quoting 30 U.S.C.
§ 820(i))).
In order to overcome this burden, the Secretary must present evidence to a judge—
exercising his or her independent authority—to satisfy the six criteria set forth in section 110(i).
Simply pointing to the Secretary’s regulations does not overcome this burden. Therefore, the
undersigned rejects the Solicitor’s contention that the application of section 100.3 establishes
a prima facie case for a reasonable settlement.
Consequently, the undersigned evaluated the settlement agreement absent the argument
rejected above.
The undersigned considered the representations and documentation submitted in this
case, and the undersigned concludes that the proffered settlement is fair, reasonable, appropriate
under the facts, and protects the public interest under The American Coal Co., 38 FMSHRC
1972, 1976 (Aug. 2016), and is appropriate under the criteria set forth in section 110(i) of the
Act. The settlement amounts are as follows:

1

Although there were some clerical errors in the Settlement Motion, the Secretary
clarified the proposed settlement in an email dated July 13, 2021. This Decision reflects those
clarifications.

43 FMSHRC Page 352

Citation No. Assessment Settlement
9493251 $1,076.00
$807.00
9493254
$482.00
$362.00
9493255 $2,595.00 $1,946.00
9493257 $19,178.00 $7,995.00
9493256 $19,178.00 $7,995.00
9493165 $2,394.00 $1,796.00
9493166 $2,394.00 $1,796.00
9493261
$720.00
$540.00
9493263
$720.00
$540.00
9493249 $1,076.00
$807.00
9493250 $2,394.00 $1,796.00
9133601 $1,166.00
$582.00
9493164 $1,263.00
$947.00

Citation No. Assessment Settlement
9493167
$782.00
$587.00
9230950
$324.00
$137.00
9493269 $1,166.00 $1,166.00
9493273
$720.00
$325.00
9264049 $1,166.00
$524.00
9149557
$351.00
$351.00
9264050
$144.00
$121.00
9493308
$144.00
$121.00
9493031
$482.00
$242.00
9493270 $1,166.00 $1,166.00
9493032
$482.00
$242.00
9493177
$144.00
$144.00
$61,707.00 $33,035.00

WHEREFORE, the motion for approval of settlement is GRANTED.
It is ORDERED that Citation No. 9493255 be MODIFIED to reduce the number of
persons affected from two to one.
It is ORDERED that Citations No. 9493257 and 9493256 be MODIFIED to reduce the
likelihoods of injury or illness from highly likely to reasonably likely and the numbers of persons
affected from two to one.
It is ORDERED that Citation No. 9493166 be MODIFIED to reduce the level of
negligence from high to moderate.
It is ORDERED that Citations No. 9133601, 9493273, 9264049, 9264050, and 9493308
be MODIFIED to reduce the levels of negligence from moderate to low.
It is ORDERED that Citations No. 9493031 and 9493032 be MODIFIED to reduce the
expected injuries or illnesses from fatal to permanently disabling.
It is ORDERED that Citation No. 9230950 be MODIFIED to reduce the level of
negligence from high to low.

43 FMSHRC Page 353

It is further ORDERED that the operator pay a total penalty of $33,035.00 within thirty
days of this order.2

/s/ Thomas P. McCarthy
Thomas P. McCarthy
Administrative Law Judge

Distribution:
Jean C. Abreu
C. Renita Hollins
Office of the Solicitor
U.S. Department of Labor
61 Forsyth Street, S.W.
Room 7T10
Atlanta, GA 30303
abreu.jean.c@dol.gov
hollins.cordelia.r@dol.gov
Atl.fedcourt@dol.gov
Guy W. Hensley
Warrior Met Coal Mining, LLC
16243 Highway 216
Brookwood, AL 35444
guy.hensley@warriormetcoal.com

2

Payment should be sent to: Pay.gov, a service of the U.S. Department of the Treasury,
at https://www.pay.gov/public/form/start/67564508 or, alternately, Mine Safety & Health
Administration, U.S. Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO
63179-0390.

43 FMSHRC Page 354

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9950 / FAX: 202-434-9949

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

DISCRIMINATION PROCEEDING
Docket No. PENN 2020-0015-DM

v.
LEHIGH CEMENT COMPANY, LLC,
Respondent.

Mine: Nazareth Plant I
Mine ID: 36-00190

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

BACKGROUND

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

DISCUSSION

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

43 FMSHRC Page 355

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

1

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

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

43 FMSHRC Page 356

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

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

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

43 FMSHRC Page 357

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

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

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

v.
YAGER MATERIALS CORP.,
Respondent

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

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

43 FMSHRC Page 358

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

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

43 FMSHRC Page 359

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

1

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

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

43 FMSHRC Page 360

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

3

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

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

43 FMSHRC Page 361

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

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

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

43 FMSHRC Page 362

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9900 / FAX: 202-434-9949

July 29, 2021
SECRETARY OF LABOR, U.S.
DEPARTMENT OF LABOR on behalf of
DARCY WHITE,
Complainant,

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. LAKE 2021-0158
MSHA Case No. MORG-CD-2020-08

v.
PRAIRIE STATE GENERATING CO.,
Respondent.

Mine: Lively Grove Mine
Mine ID: 11-03193

ORDER GRANTING JOINT MOTION TO APPROVE
TEMPORARY ECONOMIC REINSTATEMENT
MOTION AND AGREEMENT
Before: Judge McCarthy
This matter is before the undersigned on the Secretary of Labor’s Application for
Temporary Reinstatement filed on behalf of miner Darcy White pursuant to section 105(c) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801, et seq., as amended (“Mine
Act”), and 29 C.F.R. § 2700.45. On July 01, 2021, Respondent filed a Motion to Dismiss
Application for Temporary Reinstatement for Failure to Join a Required Party or To Join
Required Party, wherein it attached a Declaration from Prairie State Safety Manager, Lane
Hendricks. On July 08, 2021, the Secretary filed its Response to Respondent’s Motion to
Dismiss, opposing the motion. On July 12, 2021, the Respondent filed a Reply to the Secretary’s
Response, wherein it attached the contractual agreement between Prairie State and Custom
Staffing, White’s employer.
On July 09, 2021, a Notice of Hearing was sent to the parties for a virtual hearing via
Zoom to be held on July 20, 2021. On that date, the undersigned opened the hearing and asked
the parties if there was any further possibility of exploring settlement avenues. The parties
thereafter agreed to explore settlement possibilities in breakout rooms over Zoom. After
approximately three hours, including status updates with the undersigned, the parties and their
clients reached a meeting of the minds on material terms of settlement and placed the material
terms of the tentative agreement on the record.
On July 27, 2021, the parties filed a Joint Motion to Approve Temporary Economic
Reinstatement, as well as an Agreement Regarding Economic Reinstatement for Darcy White.
The full terms and conditions of the parties’ economic reinstatement agreement are hereby
incorporated by reference. The undersigned has reviewed the Motion and Agreement, and the

43 FMSHRC Page 363

undersigned concludes that the proposed economic reinstatement agreement is fair, reasonable,
appropriate, and protects the public interest because it will further the intent and purpose of the
Mine Act.
ORDER
It is hereby ORDERED that Darcy White be TEMPORARILY ECONOMICALLY
REINSTATED per the terms of the parties’ Agreement, effective on the date of this Order.
White shall receive the wages she was formerly paid, as well as other terms of her employment,
as set forth in the Agreement.
This Order SHALL remain in effect until final order or determination on the underlying
discrimination complaint as set forth in section 105(c)(2) of the Mine Act. 30 U.S.C. §
815(c)(2). The undersigned retains jurisdiction over this temporary reinstatement proceeding. 29
C.F.R. § 2700.45(e)(4).
Pursuant to section 105(c)(3) of the Act, the Secretary is required to notify the
Complainant whether a violation has occurred within 90 days of the receipt of the complaint.
Ms. White filed her complaint on April 20, 2021, and the Secretary is beyond the 90-day
statutory requirement. The Secretary is ORDERED to complete its investigation and to make a
determination within 30 days, or to provide this tribunal with a detailed reason for why this
deadline cannot be met.
SO ORDERED.

/s/ Thomas P. McCarthy
Thomas P. McCarthy
Administrative Law Judge

Distribution: (Email)
Suzanne F. Dunne, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn
Street, Rm. 844, Chicago, IL 60604; dunne.suzanne@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 Wolfson, Esq., Fisher Phillips LLP, Six PPG Place, Suite #830, Pittsburgh, PA 15222;
awolfson@fisherphillips.com

43 FMSHRC Page 364

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 Pennsylvania Ave. NW, Suite 520N
WASHINGTON, DC 20004-1710
TELEPHONE: (202)434-9958 / FAX: (202)434-9949

July 29, 2021
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of JASON HARGIS,
Complainant,

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. SE 2021-0163
MSHA Case No.: BARB-CD-2021-02

v.
VULCAN CONSTRUCTION
MATERIALS, LLC,
Respondent

Mine: Wilson County Quarry
Mine ID: 40-00131

ORDER GRANTING TEMPORARY ECONOMIC REINSTATEMENT
OF JASON HARGIS
Before: Judge Young
Pursuant to Section 105(c)(2) of the Federal Mine Safety and Health Act of 1977 (“Act”),
30 U.S.C. § 801, et. seq., and 29 C.F.R. § 2700.45, the Secretary of Labor (“Secretary”) on July
16, 2021, filed an Application for Temporary Reinstatement of miner Jason Hargis
(“Complainant”) to his former position with Vulcan Construction Materials, LLC,
(“Respondent”) at Respondent’s mine pending final hearing and disposition of the case.
According to Commission Rule 45, a request for hearing must be filed within 10 days
following receipt of the Secretary’s application for temporary reinstatement. 29 C.F.R.
§ 2700.45(c). The Secretary’s certificate of service states that the Application for Temporary
Reinstatement of Complainant was served on Respondent by electronic mail on July 16, 2021.
On a July 26, 2021 conference call, the Respondent told this Court that it would not be seeking a
hearing in this matter.
On July 28, 2021, the parties further submitted a Joint Motion to Approve Settlement
Regarding Temporary Economic Reinstatement. The Agreement sets forth the terms of the
temporary economic reinstatement, including Complainant’s rate of pay and benefits, the date
that economic reinstatement shall begin, and other terms, which are incorporated into this Order
by reference.
The Secretary has found that the Complaint was not frivolously brought and has provided
evidence supporting that determination. The Respondent does not contest the determination.
Therefore, consistent with Section 105(c)(2) of the Act, the temporary economic reinstatement of
Jason Hargis is granted.

43 FMSHRC Page 365

ORDER
It is hereby ORDERED that Jason Hargis be TEMPORARILY ECONOMICALLY
REINSTATED, effective July 27, 2021. Hargis shall receive the wages he was formerly paid, as
well as other terms of his employment, as set forth in the Agreement.
This Order SHALL remain in effect until such time as there is a final determination in
this matter by hearing and decision, approval of settlement, or other order of this court or the
Commission.
I retain jurisdiction over this temporary reinstatement proceeding. 29 C.F.R.
§ 2700.45(e)(4). The Secretary SHALL provide a report on the status of the underlying
discrimination complaint as soon as possible. Counsel for the Secretary SHALL also
immediately notify my office of any settlement or of any determination that Vulcan
Construction Materials, LLC, did not violate Section 105(c) of the Act.

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

Distribution (Via Certified Mail & Email)
William K. Doran, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., 1909 K Street, N.W., Suite
1000, Washington, DC 20006 (william.doran@ogletree.com)
Christopher M. Smith, Office of the Solicitor, U. S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219 (smith.christopher.m@dol.gov)
Elaine M. Youngblood, Ortale Kelley, 330 Commerce Street, Suite 110, Nashville, TN 37201,
(eyoungblood@ortalekelley.com)

43 FMSHRC Page 366