March 2020
TABLE OF CONTENTS

COMMISSION DECISIONS
03-12-20

SOLAR SOURCES MINING, LLC

LAKE 2017-99

Page 181

ADMINISTRATIVE LAW JUDGE DECISIONS
03-03-20

K C TRANSPORT, INC.

WEVA 2019-458

Page 221

03-26-20

BRAGG CRANE SERVICE

WEST 2019-0303

Page 240

03-27-20

CONSOL PENNSYLVANIA COAL
CO., LLC

PENN 2018-0243

Page 251

03-30-20

KOMSAN (TROY) WOODEN v.
GENESIS ALKALI, LLC

WEST 2018-0306DM

Page 275

03-31-20

SUNBELT RENTALS, INC.

VA 2013-0291

Page 293

03-31-20

THE HARRISON COUNTY COAL
COMPANY

WEVA 2020-0203

Page 300

i

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

ii

COMMISSION DECISIONS

42 FMSHRC Page 180

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

March 12, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. LAKE 2017-99

SOLAR SOURCES 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” or “Act”) and concerns a citation issued by the Secretary of
Labor’s Mine Safety and Health Administration (“MSHA”) to Solar Sources Mining, LLC. The
citation alleges that Solar Sources failed to provide berms of substantial construction at a dump
site as required by the mandatory safety standard at 30 C.F.R. § 77.1605(l) (“Berms, bumper
blocks, safety hooks, or similar means shall be provided to prevent overtravel and overturning at
dumping locations.”). Gov. Ex. 3.
Solar Sources contested the citation before the Commission. After a hearing, an
Administrative Law Judge affirmed the alleged violation, found the violation was “significant
and substantial,” (“S&S”)1 and held that the violation was the result of high negligence and an
unwarrantable failure to comply with the standard. 40 FMSHRC 462 (Mar. 2018) (ALJ). The
Judge assessed a civil penalty of $68,300, the same penalty that the Secretary had originally
proposed.
Solar Sources filed a petition for discretionary review, which the Commission granted.
On review, Solar Sources contends that the Judge erred in assessing the penalty because he failed
to make adequate findings for each of the penalty criteria in section 110(i), 30 U.S.C. § 820(i), of
the Mine Act as part of his analysis.
Given that the Judge clearly failed to follow Commission precedent and fell far short of
making adequate findings, we agree. For the reasons contained herein, we vacate the Judge’s
penalty assessment and remand the case to the Judge to complete his penalty criteria findings and
reassess a penalty.

1

The S&S terminology is taken from section 104(d)(1) of the Act, 30 U.S.C.
§ 814(d)(1), 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.”

42 FMSHRC Page 181

I.
Factual and Procedural Background
This proceeding arises from an accident that occurred at the Shamrock Mine, an Indiana
surface coal mine operated by Solar Sources. On June 27, 2016, miner Shawn Standish was on
his second trip of the morning, driving a haul truck carrying slurry to the mine’s dump pit.
Standish backed his truck up to the edge of the dump pit and stopped the vehicle. He felt the
truck’s rear tires sink. Standish attempted to accelerate away from the edge, but his truck would
not move. Standish made the decision to abandon the truck as it continued to sink. He climbed
from its cab and jumped. The truck descended over the edge, landing upside-down 47 feet into
the pit. Standish landed on the ground above, breaking both heels and one ankle.
MSHA Inspector Jason Noel investigated the accident. Noel issued a section 104(d)(1)2
order, alleging that Solar Sources failed to conduct an adequate on-shift examination of the dump
site as required by 30 C.F.R. § 77.1713(a). Gov. Ex. 4. The Judge vacated the order, finding that
the cited exam actually occurred about 20 minutes prior to the start of the day shift.3 The
Secretary did not petition the Commission for review of the Judge’s decision and, therefore, this
order is not before us.
Noel also issued a section 104(d)(1) citation, alleging that a berm of substantial
construction was not provided at the dump site as required by 30 C.F.R. § 77.1605(l). Gov. Ex.
3. The Judge affirmed the citation, finding that Solar Sources failed to provide berms as required
by section 77.1605(l). 40 FMSHRC at 491-92. The Judge found that wet slurry repeatedly falling
onto the berm during the dumping process compromised the integrity of the berm. He also found
that although it is likely that the berm was originally substantially constructed, it had deteriorated
over time. The Judge concluded that the violation was S&S, the result of high negligence, and an
unwarrantable failure to comply with the safety standard. The Secretary had proposed a $68,300
civil penalty through his special assessment protocol at 30 C.F.R. § 100.5. The Judge assessed
the exact same amount as the proposed penalty, finding it to be “consistent with the record and
the evidence introduced at hearing.” Id. at 495 (citing Rock N Roll Coal Co., 38 FMSHRC 2831,
2865 (Nov. 2016) (ALJ)).
Solar Sources contends that the Judge erred in assessing a civil penalty because he
assessed a civil penalty without associated findings for each of the statutory penalty criteria set
2

Section 104(d)(1) authorizes the Secretary to issue a citation alleging an unwarrantable
failure to comply with a mandatory safety standard and to issue an order withdrawing miners
from any affected area if the Secretary determines that a second unwarrantable failure to comply
occurs within the subsequent 90 days. 30 U.S.C. § 814(d)(1). An “unwarrantable failure”
represents aggravated conduct constituting more than ordinary negligence. Emery Mining Corp.,
9 FMSHRC 1997, 2001 (Dec. 1987).
3

The Order alleged “[t]he certified person conducting the exam drove by the gob dump
and only glanced the area.” Gov. Ex. 4. The Judge reasoned that an examination that occurs prior
to the start of a shift does not constitute an on-shift examination; the safety standard requires that
the examination take place during the shift. See 40 FMSHRC at 490.

42 FMSHRC Page 182

forth in section 110(i) of the Act. Solar Sources further maintains that the Judge erred when he
found that the Secretary’s “Narrative Findings for a Special Assessment” were consistent with
the Judge’s own findings and conclusions.
The Secretary maintains that the Judge made the required penalty criteria findings
throughout his decision, and that substantial evidence in the record supports the Judge’s penalty
assessment.
II.
Disposition
The Mine Act bifurcates, between the Secretary and the Commission, the responsibility
to propose and assess civil penalties. The Secretary proposes a civil penalty pursuant to section
105(a) of the Mine Act. 30 U.S.C. § 815(a). Then, if the operator contests the citation, a
Commission Administrative Law Judge adjudicates the case and assesses the penalty.
The Secretary has promulgated penalty regulations for two types of proposed
assessments: regular assessments and special assessments. Proposed regular assessments are
made pursuant to 30 C.F.R. § 100.3. Regular penalty proposals result from the assignment of
points to the appropriateness of the penalty to the size of the business, the operator’s history of
violations, negligence, and gravity based on the allegations in the citations.4 The cumulative total
of the points determines a penalty proposal through reference to a penalty table. MSHA
promulgated the regular assessment regulations through notice-and-comment rulemaking.
Proposed special assessments are governed by 30 C.F.R. § 100.5, which only provides
that “MSHA may elect to waive the regular assessment under [section] 100.3 if it determines that
conditions warrant a special assessment.” Section 100.5(b) states that “[w]hen MSHA
determines that a special assessment is appropriate, the proposed penalty will be based on the six
criteria set forth in [section] 100.3(a). All findings shall be in narrative form.” 30 C.F.R.
§ 100.5(b).
Section 105(d) of the Mine Act, in turn, provides mine operators with the right to contest
the Secretary’s proposed civil penalty before the Commission. 30 U.S.C. § 815(d). Pursuant to
section 110(i) of the Act, the Commission independently assesses a civil penalty de novo based
on findings of fact and consideration of six penalty factors:
[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

4

MSHA does not assign points for the effect upon the ability to stay in business or good
faith in achieving rapid compliance.

42 FMSHRC Page 183

gravity of the violation, and [6] the demonstrated good faith of the
[operator] charged in attempting to achieve rapid compliance after
notification of a violation.
30 U.S.C. § 820(i).
Upon finding a violation, a Judge assesses a penalty after a due process hearing and
findings of fact. 30 U.S.C. § 815(d), 820(i); 29 C.F.R. § 2700.30(a). In assessing a penalty de
novo, a Judge is neither bound by the Secretary’s Part 100 regulations nor by the originally
proposed penalty. See Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151-52 (7th Cir.
1984), aff’g 5 FMSHRC 287 (Mar. 1983). Judges are accorded broad discretion to assess civil
penalties, but their decisions must reflect proper consideration of the section 110(i) penalty
criteria. Westmoreland Coal Co., 8 FMSHRC 491, 492 (Apr. 1986). The Judge must provide an
explanation if the penalty assessment substantially diverges from the Secretary’s proposed
regular assessment. Sellersburg, 5 FMSHRC at 293. The Commission reviews the Judge’s
penalty determination under an abuse of discretion standard. Douglas R. Rushford Trucking, 22
FMSHRC 598, 601 (May 2000).
In Sellersburg, the Commission established an abiding rule for penalty assessments. The
Commission requires that, in assessing a penalty, the Judge must make:
[f]indings of fact on each of the statutory criteria [that] not only
provide the operator with the required notice as to the basis upon
which it is being assessed a particular penalty, but also provide the
Commission and the courts . . . with the necessary foundation upon
which to base a determination as to whether the penalties assessed
by the judge are appropriate, excessive, or insufficient.
5 FMSHRC at 292-93 (emphasis added).
In Cantera Green, 22 FMSHRC 616, 621 (May 2000), the Commission further
explained:
[w]hile the findings and explanations relating to a penalty
assessment do not have to be exhaustive, they must at least provide
the Commission with a basis for determining whether the judge
complied with the requirement to consider and make findings
concerning the section 110(i) penalty criteria.
In Cantera Green, the Commission vacated and remanded penalty assessments because the
Judge failed to fully consider the statutory criteria for each citation at issue and also “failed to
adequately explain the basis for the penalties he assessed for the violations . . . .” Id. at 626.
The obligation to make findings on the penalty criteria is not merely a Commission
predilection. Due process demands that the Commission inform operators adequately, and with
sufficient specificity, of the basis upon which the Commission imposes a penalty. If the Judge

42 FMSHRC Page 184

does not provide a discussion of the penalty criteria, including when appropriate how the penalty
criteria interplay with one another, then the respondent is not informed sufficiently of the
reasoning for a civil monetary penalty.
Further, without a cogent explanation by the Judge of the assessment, the Commission
and reviewing courts cannot perform their review function conscientiously. A sufficient
explanation is essential to the fair review of an assessment. Thus, in discussing each of the six
criteria, the Judge must provide a clear and sufficient understanding of the basis for the assessed
penalty.
This duty applies not only to making findings on each of the penalty criteria but also to
analyzing any relationships between the criteria that may affect the ultimate penalty assessment.
Thus, for example, a discussion of the size of a mine and the frequency of violations in
juxtaposition may be informative to the reasoning behind a penalty evaluation more fully than
looking at each criterion as a distinct element of a penalty.
We need not plow through a tedious review of the dozens of remands of penalty
assessments due to the failure of Judges to make the necessary findings. Contrary to our
dissenting colleague’s assertions (slip op. at 33-36), remands are not extraordinary and are, in
fact, necessary when a Judge does not follow Commission directives. Twenty years ago, the
Commission remarked on the failure of Judges to meet the requirements rooted in due process
and an adequate basis for review:
Despite the Commission’s clear mandate in Sellersburg and
related cases, and in its Procedural Rules, we have repeatedly
found it necessary to remand cases for penalty assessments
because judges have failed to enter the requisite findings. See, e.g.,
Secretary of Labor on behalf of Hyles v. All American Asphalt, 21
FMSHRC 119, 142 (Feb. 1999); Rock of Ages, 20 FMSHRC at
126; Secretary of Labor on behalf of Glover v. Consolidation Coal
Co., 19 FMSHRC 1529, 1539 (Sept. 1997); Fort Scott, 19
FMSHRC at 1518; Thunder Basin Coal Co., 19 FMSHRC 1495,
1502-03 (Sept. 1997). In the majority of cases heard under the Act,
records are developed on the section 110(i) criteria and penalties
are assessed properly and efficiently. Cases in which this does not
occur, however, have become frequent enough to give us pause.
We intend that the three decisions we issue today will convey our
message that it is imperative that this Commission avoid giving
short shrift to our statutory duty to assess Mine Act penalties under
section 110(i).
Hubb Corp., 22 FMSHRC 606, 612 (May 2000).5
5

Commission Procedural Rule 30(a) instructs Judges that their decisions “shall contain
findings of fact and conclusions of law on each of the statutory criteria and an order requiring
that the penalty be paid.” 29 C.F.R. § 2700.30(a). This requirement serves two functions. First,
(continued…)

42 FMSHRC Page 185

Despite the decision in Hubb, the Commission continues to find it necessary to remand
penalty determinations when Judges fail to supply adequate penalty assessments—that is, an
assessment meeting the requirements of due process and adequately explaining the penalty
assessment to allow Commission review. E.g. Virginia Slate Co., 24 FMSHRC 507, 514-15
(June 2002); Sedgman, 28 FMSHRC 322, 342-44 (June 2006); Mining & Property Specialists,
33 FMSHRC 2961, 2964 (Dec. 2011); Hidden Splendor Res., Inc., 36 FMSHRC 3099, 3104
(Dec. 2014).6 That is precisely the situation with this Judge and this case.
Of course, the Commission does not exalt form over substance. It is not possible to
enunciate a precise formula for recitation of penalty factors that would fit all cases.
Consequently, as must be obvious, the evaluation of compliance with the requirement for an
adequate review of all criteria is case-specific. The Commission does not remand assessments
imposed with less than perfection when the Judge’s explanation is sufficient in the context of the
totality of the case to meet the requirements of due process and fair and informed review. E.g.,
Spartan Mining Co., 30 FMSHRC 699, 724 (Aug. 2008) (stating that the operator took issue
only with the two factors of negligence and gravity upon which the Judge based his assessment);
Knight Hawk Coal, LLC, 38 FMSHRC 2361, 2373 (Sept. 2016) (noting that the Judge made
findings on five factors and making a finding on the sixth factor that the Commission found did
not disturb the penalty assessed by the Judge).
The outcome of this case, therefore, does not depend upon identification of a legal
standard for making penalty assessments. The standards are well established. Each decision must
be case-specific, and the Commission’s decision turns on whether the Judge’s exposition of the
penalty factors permits the Commission to determine that the Judge has fully considered the
penalty criteria individually and in relationship to one another.
As set forth below, the Judge’s discussion in this case falls far short of meeting the
standard necessary for fair review, as required by Commission case law. Therefore, the only
proper course is remand.7

5

(…continued)
the findings provide the operator with notice as to the basis of the penalty assessment. Second,
the Commission is provided the information necessary to review the Judge’s assessment. See
Sellersburg, 5 FMSHRC at 292-93.
6

The requirement for a sufficient explanation applies to all assessments. However, it is
notable that the Mine Act utilizes a graduated scheme of enforcement. That graduated approach
applies to the assessment of penalties—that is, penalties for violations increase toward a statutory
maximum as they approach severely violative conduct. In considering imposition of a maximum
(or close to maximum) penalty, it becomes particularly important under a graduated scheme of
enforcement to completely discuss the full impact of each penalty criterion.
7

Commissioner Traynor concurs on Parts A and B of this opinion, but writes separately
to dissent from Parts C and D.

42 FMSHRC Page 186

A. The Judge Erred by Failing to Fully Consider the Statutory Penalty Criteria.

In the proceeding before us, the Judge assessed a $68,300 civil penalty and provided only
a terse statement of the basis for his assessment.
Having found that the violation identified in Citation No.
9102704 was established and that the Inspector’s evaluation of the
gravity and negligence and his finding of unwarrantable failure and
significant and substantial were demonstrated that no cognizable
mitigation was advanced, the Court therefore finds, that upon
application of the statutory criteria, the penalty proposed by the
Secretary should be applied. [FN 15]
[FN 15] The other statutory factors were duly considered. From
the parties’ stipulation, it is noted that the factors of good faith and
the ability to continue in business did not impact the penalty
determination. Regarding production, Atkinson informed that the
mine produces about 1.6 million (tons). Tr. 301. This means the
Shamrock Mine is a large mine. The violation history is reflected
in Exhibit P 2 . . . .
40 FMSHRC at 495 & n.15 (emphasis added).
From the foregoing, it is obvious that the Judge limited his analysis discussion to only
two of six statutory factors in the text. In a footnote, he summarily discharged the “other
statutory factors” as “duly considered.” This abrupt footnote is no demonstration that he
considered all criteria sufficiently. In addition to the overall short shrift given these statutory
criteria, the Judge’s decision was totally deficient of any evaluation of “the operator’s history of
previous violations” and “the demonstrated good faith of the [operator] charged in attempting to
achieve rapid compliance after notification of a violation.” See 30 U.S.C. § 820(i); 29 C.F.R.
§ 2700.30(a).
The record contains highly relevant evidence regarding the operator’s violation history.
Yet, the Judge did not engage in any analysis and did not make any finding on the possible
significance of such evidence. The Judge merely references Government Exhibit P-2.8
The Judge’s decision is devoid of reasoning as to whether this record of compliance had
any effect on the penalty given his negligence and gravity findings. Judges must bear in mind
that they are imposing civil penalties to incentivize compliance rather than criminal penalties to
punish a crime. An operator’s history of violations may be highly relevant to incentivizing
8

Ironically, that exhibit reveals a positive compliance record in that the operator had not
had a berm violation in six years and only two such violations in its entire history. It did not have
any unwarrantable failures in the 15 months preceding the citation. In fact, the operator had
received only 19 citations under section 104(a) of the Mine Act, 30 U.S.C. § 814(a), for which it
was penalized a total of $13,276.

42 FMSHRC Page 187

compliance. In the absence of circumstances not present here, it is error to ignore the history of
violations in imposing a penalty merely by noting an exhibit in the record.9
Moreover, the parties expressly argued the importance of the history of violations to the
proper penalty. See Oral Arg. Tr. 15 (“a very good assessment history, very few . . . .”); Oral
Arg. Tr. 66 (“a lot of violations for a company”). Thus, the Judge’s error of omission here is
especially obvious because the significance of the history of violations was a matter of specific
dispute. This is a “question of fact” that remains unresolved, despite our colleague’s
protestations to the contrary. Slip op. at 33 & n.5.
The Judge also erred in stating that the parties had entered stipulations with respect to
two penalty factors. 40 FMSHRC at 495 n.15 (“[f]rom the parties’ stipulations, it is noted that
the factors of good faith and ability to continue in business did not impact the penalty
determination.”). It is clear from the record that they had not entered into such stipulations. The
parties’ joint stipulations have no reference at all to either good faith abatement or the impact of
a $68,300 penalty.10
In fact, the parties argued over the significance of the operator’s response to compliance
“after notice of violations.” The parties continue to dispute the sufficiency of the operator’s
efforts and, therefore, the Judge must make such a finding before reassessing a penalty.11
Accordingly, remand is essential in this case in the interest of justice. On remand, we
direct the Judge to make specific findings regarding the operator’s history of violations and the
operator’s actions related to attempting to achieve rapid compliance after notification of a
violation, consistent with the requirements of Commission Procedural Rule 30(a) and section
110(i) of the Mine Act. He must review these factors taking into account the findings on the
other penalty criteria. The Judge must then consider his penalty criteria findings along with the
record evidence, reassess a civil penalty, and explain his rationale in an independent and
reasoned manner.12
9

In Wolf Run Mining Company, 35 FMSHRC 536 (March 2013), the Commission stated
that consistent with the graduated enforcement scheme of the Act, an operator’s past history of
significant violations should be considered in considering assessing higher penalties. Id. at 542.
By parity of reasoning, an operator’s history of few violations is relevant in considering the
assessment of higher penalties.
10

Because Solar Sources did not contend that payment of the penalty would affect its
ability to stay in business, the mistake as it relates to that particular penalty criterion was
harmless error. In Sellersburg, the Commission held, “In the absence of proof that the imposition
of authorized penalties would adversely affect its ability to continue in business, it is presumed
that no such adverse effect would occur.” 5 FMSHRC at 294.
11

The Secretary argues that Solar Sources did not demonstrate good faith abatement
efforts. Oral Arg. Tr. 37-38, 57.
12
The Commission is concerned exclusively with the adjudicative process and does not
have a basis, at this point, for determining whether or not the amount assessed by the Judge was
appropriate.

42 FMSHRC Page 188

B. The Judge Need Not Reconcile the Differences Between His Penalty Analysis and

the Secretary’s Narrative Findings for a Special Assessment.
In assessing the $68,300 penalty, the Judge stated that “the special assessment in this
matter is consistent with the record and the evidence introduced at hearing.” 40 FMSHRC at 495
(citing Rock N Roll Coal, 38 FMSHRC at 2865). The Judge cited the non-precedential ALJ
decision Rock N Roll Coal rather than the Commission’s relevant decision, The American Coal
Company, 38 FMSHRC 1987 (Aug. 2016) (“AmCoal I”). We note, however, that Rock N Roll
Coal actually contains findings for each of the penalty criteria and an explanation of the
significance of those findings exerted on that Judge’s penalty calculation. 38 FMSHRC at 286566. Here, the Judge made no such findings. He gave no such explanation. Hence, he did not
follow Rock N Roll Coal in a proper manner. There is certainly no error in citing a colleague’s
decision; however, the Judge is bound by Commission precedent and his reliance on a nonprecedential ALJ decision should have detailed and clarified how his own independent judgment
was informed by the decision in Rock N Roll Coal.
Solar Sources contends that the Judge erred by finding that the Secretary’s “Narrative
Findings for Special Assessment” 13 was consistent with the record evidence when, in fact, there
were discrepancies between the Judge’s findings and the Secretary’s allegations. Specifically, the
Secretary alleged that the operator knew or should have known of the poor condition of the
berms because a certified person had performed an on-shift examination prior to the accident.
Notably, the order alleging an inadequate on-shift examination was vacated by the Judge.
Furthermore, the Secretary’s narrative alleged that the berms were constructed of slurry while the
Judge found that, originally, the berms had been constructed of shot rock.
We find that the Judge’s error was not in failing to reconcile any differences between his
findings and the Secretary’s pre-hearing allegations, but instead was in failing to exercise his
own responsibility to conduct an independent and reasoned analysis, using the record evidence.
See AmCoal I, 38 FMSHRC at 1995 (“The Judge’s assessment is made independently and,
regardless of the Secretary’s proposal, the Judge must support the assessment based on the
penalty criteria and the record.”) (emphasis added).

13

The portion of the Secretary’s “Special Assessment Narrative Form” used to derive the
amount of the special assessment penalty proposal does not appear in this record. It was,
however, provided to the mine operator in AmCoal I. 38 FMSHRC at 1996. The Secretary bears
the burden of justifying his penalty proposal under the criteria, and “[w]hen a violation is
specially assessed that obligation may be considerable.” Id. at 1993. Providing a rationale for a
special assessment is essential to providing more clarity to the Judge, and to the Commission on
review, and the Secretary is obliged to provide more than an opaque process and a secret theory
of the case. See Sellersburg, 5 FMSHRC at 292-93 (explaining that requirement to discuss
penalty criteria is necessary to provide adequate foundation for review).

42 FMSHRC Page 189

On remand, the Judge is directed to independently reassess a penalty in accordance with
AmCoal I. The Judge must then explain the rationale for his penalty assessment using the
statutory penalty criteria and the record evidence.14
C. The Judge is Not Required to Reconcile His Reassessed Penalty with the Amount

Proposed by the Secretary According to his Special Assessment Procedures.
In remanding this matter for penalty reassessment, we note that the United States Court
of Appeals for the District of Columbia Circuit mused in the recent case, American Coal
Company v. FMSHRC, that Commission case law “seems to point in two directions” regarding
Commission Judges’ use of the Secretary’s penalty proposal as any sort of reference point. 933
F.3d 723, 728 (D.C. Cir. 2019). In strongly affirming the Commission’s independence in
determining penalties, the District of Columbia Circuit stated a perception that, for it, seems to
have been troubling—namely:
the Commission’s precedent seems to point in two directions. On
the one hand, an ALJ’s penalty ‘assessment must be independent,
and the Secretary’s proposal is not a baseline or starting point that
the Judge should use [as] a guidepost for his/her assessment’
American Coal, 38 FMSHRC at 1990. On the other hand, ALJs are
supposed to provide ‘an explanation of any substantial divergence
from the penalty proposal of the Secretary.’
Id.
The court’s apparent impression of an inconsistency in Commission law demands prompt
clarification. Affected parties, Commission Judges, and courts must understand the fundamental
importance of the Commission’s penalty directives—especially because the “two directions”
noted by the court are not separate, divergent paths. To the contrary, each directive is a discrete,
bedrock principle of the Commission’s jurisprudence that operates with the other to ensure fair,
equitable, and consistent penalty assessments.15 The rationale for these directives rests upon the
fundamental distinction between regular and special assessments.
Many Commission decisions state, directly or indirectly, that the Secretary’s penalty
proposal is not a baseline or starting point, while other decisions require Judges to explain any
substantial divergence from the penalty proposal of the Secretary. Compare AmCoal I, 38
14

“While the findings and explanations relating to a penalty assessment do not have to be
exhaustive, they must at least provide the Commission with a basis for determining whether the
judge complied with the requirement to consider and make findings concerning the section
110(i) penalty criteria.” Cantera Green, 22 FMSHRC at 621.
15

The circuit court correctly recognized that the Commission split evenly in its review of
the Administrative Law Judge’s decision. Accordingly, it found that it would “review the ALJ’s
legal determinations de novo and factual determinations for substantial evidence.” 933 F.3d at
726. On this point, no Commission decision was cited by the circuit court and it is unknown the
extent to which, if at all, the court reviewed the separate opinions of the Commissioners.

42 FMSHRC Page 190

FMSHRC at 1990 (stating that “the Secretary’s [penalty] proposal is not a baseline or starting
point that the Judge should use a guidepost for his/her assessment”) with Sellersburg, 5
FMSHRC at 293 (requiring “a sufficient explanation of the bases underlying the penalties
assessed by the Commission” for assessments which substantially diverge from MSHA’s
proposal).
While, at first, these may appear to be on divergent paths, they work together to preserve
the credibility of the administrative scheme and avoid the appearance of arbitrariness. In their
proper context, each of these principles is correct. They are complementary approaches that
serve the same important objective.
(1) The Basic Principles
We established basic principles, long ago, for the fair and consistent assessment of
penalties, which include both “directions” referred to by the circuit court along with a third
important principle, in a case decided relatively soon after full implementation of the Mine Act.
Sellersburg, 5 FMSHRC at 290-94. In Sellersburg, the operator challenged an Administrative
Law Judge’s penalty assessments as excessive and an abuse of discretion. The operator further
argued that the Judge erred by not following sufficiently the Secretary’s penalty assessment
regulations. In support of its position, the operator noted the wide divergence between the
penalties proposed by the Secretary and those assessed by the Judge, as well as the Judge’s
failure to consider each of the statutory penalty criteria.
In considering these challenges, the Commission identified three principles that continue
to guide Commission penalty jurisprudence:
1. The Secretary’s penalty proposals do not bind the Commission. The Commission
assesses penalties de novo in accord with section 110(i) of the Mine Act, 30 U.S.C.
§ 820(i). Id. at 291-92.
2. Judges must make findings of fact for each of the six statutory penalty criteria. Id.
3. Judges must explain any substantial divergence from the penalty proposal of the
Secretary regarding regular assessments. Id. at 293.
The first two principles follow directly from the plain words of the Mine Act. The court’s
decision in American Coal is the latest in a long line of decisions that leave no doubt whatsoever
about the Commission’s authority to set penalties of contested citations and orders after hearing.
Further, Commission case law, including the present case, reiterates the necessity for findings on
each of the six penalty factors identified in the Mine Act. See, e.g., Dolese Bros. Co., 16
FMSHRC 689, 695-96 (Apr. 1994) (remanding to the Judge where he failed to enter findings on
four of the penalty criteria).
The third Sellersburg principle does not flow directly from the plain wording of the Mine
Act. It arises from the Commission’s proper concern for the fair and equitable administration of

42 FMSHRC Page 191

penalty assessments across a large, diverse industry, whose operators vary greatly in their types,
sizes, sophistication, and safety performance.16
From these and other factors and subcategories, it is clear that the Commission sets
penalties over an almost limitless number of permutations of penalty factors. Rather than
promulgating rules or establishing generalized guidelines for the evaluation and weighing of
penalty factors through case law, the Commission has relied upon the substantial divergence
principle to establish general uniformity in the assessment of penalties. As explained below,
however, this third principle cannot be applied to special assessments because it is grounded on
the general transparency and consistency of MSHA’s process for developing regular assessment
proposals.
(2) Regular Assessments
On May 30, 1978, MSHA published final rules pertaining to the proposed assessment of
civil penalties under the Mine Act for coal mines and metal and nonmetal mines. 43 Fed. Reg.
23514, 23515 (May 30, 1978). The rules continued the use of a formula system developed by the
Mine Enforcement Safety Administration (“MESA”) for imposition of most penalties under the
Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1976) (amended
1977) (“Coal Act”). The formulaic system results in “regular” penalties. 30 C.F.R. §100.3.
Regular penalties account for approximately 99 percent of the penalties proposed by MSHA.17
Under the regular point system, MSHA assigns numerical points to four of the six penalty
factors—size of operator, frequency of violations, negligence, and gravity. The cumulative total
of the points determines a penalty through reference to a penalty table. 30 C.F.R. § 100.3(g).
This regular system achieves a kind of standardized and normative assignment of penalties

16

Operators range in size from family-owned businesses to multinational corporations.
Moreover, even among similar types of operations of the same general size, mines have varying
histories of violations. Negligence for a specific violation may fall along the continuum between
no negligence and willful or intentional misconduct, and the gravity, as characterized by the
Secretary, may also vary greatly.
17

In AmCoal I, 38 FMSHRC at 1987, the Secretary submitted a supplemental statement
in response to questioning at the Commission’s oral argument in that case, stating that “In fiscal
year 2015, slightly less than one percent of all assessments – 1,069 of 115,483, or .925 percent –
were special assessments.” Sec’y letter dated May 2, 2016 at 3.

42 FMSHRC Page 192

across all sizes and kinds of operators and degrees of negligence and gravity.18 The Commission
recognized this benefit in Sellersburg, holding:
When based on further information developed in the adjudicative
proceeding, it is determined that penalties are appropriate which
substantially diverge from those originally proposed [by the
Secretary], it behooves the Commission and its judges to provide a
sufficient explanation of the bases underlying the penalties
assessed by the Commission. If a sufficient explanation for the
divergence is not provided, the credibility of the administrative
scheme providing for the increase or lowering of penalties after
contest may be jeopardized by an appearance of arbitrariness.
Sellersburg, 5 FMSHRC at 293 (emphasis added).
MSHA’s regular penalty system represents the agency’s professional judgment on the
relative importance of the facts of violation and each of the penalty factors and sub-factors.
Given the normative formula used by MSHA to propose a penalty of record, the regular penalty
system is useful for proposing, insofar as possible, fair and equal penalties across many operators
and many penalty factors. When an operator receives a proposed assessment, it has a basis for
determining how the penalty was calculated.
This transparency promotes public confidence in the penalty system, and the Commission
has recognized the need to preserve consistency and transparency in our proceedings, while
allowing our Judges to make generally binding findings of fact and to apply the law so that each
case is decided on the particular facts and circumstances in the record. Commission Judges have
the authority to assess the penalties, but the Commission has determined to provide instructions
regarding that authority to accommodate the interests of fairness and consistency.
Thus, when the penalty assessed by the Judge substantially diverges from a proposed,
regularly assessed penalty, the Commission requires Judges to provide an explanation for the

18

The regulations recognize the need for fairness in the assessment of penalties
across the range of operators. Section 100.1 of the regulations provides:
This part provides the criteria and procedures for proposing civil
penalties under sections 105 and 110 of the Federal Mine Safety
and Health Act of 1977 (Mine Act). The purpose of this part is to
provide a fair and equitable procedure for the application of the
statutory criteria in determining proposed penalties for violations,
to maximize the incentives for mine operators to prevent and
correct hazardous conditions, and to assure the prompt and
efficient processing and collection of penalties.
30 C.F.R. § 100.1 (emphasis added).

42 FMSHRC Page 193

divergence to avoid an appearance of arbitrariness in penalty assessments.19 Judges have
properly followed the Commission’s directive in literally hundreds of cases over the years since
Sellersburg was issued in 1983.20
Recognition of the normative benefits of regular assessments does not diminish the
Commission’s duty and authority to set penalties independently based upon findings of fact on
all penalty factors. Rather, the Commission has provided a directive to Judges in order to
harmonize its exercise with the need for fairness and transparency in penalty assessments. While
we reaffirm the requirement to explain an assessment that is substantially divergent from a
proposed regular penalty, the Commission must recognize the differences between regular and
specially assessed MSHA penalty proposals.
(3) Special assessments
Special assessments require a different analysis than regular penalty proposals. MSHA
calculates special penalties to substantially increase penalties calculated under the regular point
system, in order to address agency enforcement priorities. It does so by adding points to the
negligence and gravity elements, without accounting for other statutory penalty criteria or
considering the specific facts of the violation. Considering a penalty thus calculated in the same
manner as a regular assessment is inconsistent with Sellersburg, because the proposed special
assessment is itself a substantial divergence from a regular penalty.

19

Accordingly, the Commission routinely refers to the role of regular penalty
assessments in evaluating citations. See Unique Electric, 20 FMSHRC 1119, 1123 & n.4 (Oct.
1998); Thunder Basin, 19 FMSHRC at 1504; Dolese Bros. Co., 16 FMSHRC at 695 (finding that
the Judge was required to explain a 60% increase in his civil penalty assessment). See also Dan
J. Sheehan Co. v. OSHRC, 520 F.2d 1036, 1040-1042 (5th Cir. 1975); Clarkson Construction
Co. v. OSHRC, 531 F.2d 451, 456 (10th Cir. 1976).
20

Of course, the circuit court is correct that, from the statutory perspective of the
language of the Mine Act, the Secretary’s proposed regular penalty is a litigating position.
American Coal, 933 F.3d at 727. However, as a matter of Commission case law, the Commission
has recognized that the penalty proposed through the regular penalty assessment procedures
results from the only existing system designed to provide a measure of uniformity to assessments
across the multi-factored penalty process. AmCoal I, 38 FMSHRC at 1990-92, 1994-95. As the
circuit court also recognizes, Congress empowered the Commission to assess penalties of
contested citations and orders after a due process hearing under the Mine Act. American Coal,
933 F.3d at 725. Given the Congressional basis for the Commission’s authority, courts
undoubtedly must defer to reasonable guidelines established by rule or case law by the
Commission to superintend Administrative Law Judges in the assessment of penalties.

42 FMSHRC Page 194

(a)

The Regulatory Guidance for MSHA

As promulgated in 1978, section 100.5 (then section 100.4) identified specific categories
of violations for review for possible special assessment.21 See 30 C.F.R. § 100.4 (1978); 43 Fed.
Reg. 23517, 23519 (May 30, 1978). In 2007, however, MSHA amended section 100.5 to
eliminate any identification of categories of violations for possible special assessment. See 72
Fed. Reg. 13592, 13621-22 (Mar. 22, 2007). As amended, section 100.5 gives MSHA openended authorization for special assessments. The principal operative provision of the current
section 100.5 is subsection (a) that states only, “MSHA may elect to waive the regular
assessment under § 100.3 if it determines that conditions warrant a special assessment.”
Subsection (b) provides that all findings shall be in narrative form. 30 C.F.R. § 100.5.
MSHA, then, makes special assessments through a combination of internal discretionary
decisions and a special assessment formula. Neither of these aspects of special assessment has
received public notice and comment. Thus, neither the consistency nor transparency of the
regular penalty process is inherent in the special assessment process.22
21

The 1978 rule actually stated that special assessments may be appropriate in cases of
“fatalities and serious injuries, unwarrantable failures to comply with mandatory health and
safety standards or patterns of violations under section 104 of the Act, the operation of a mine in
the face of a closure order, the failure to permit an authorized representative of the Secretary of
Labor to perform an inspection or investigation, discrimination violations under section 105(c) of
the Act, failure to abate a violation within the prescribed period, violations by individuals,
violations by designated independent contractors, and in other appropriate cases.” 30 C.F.R.
§ 100.4 (1978). Prior to enactment of the MINER Act of 2006, that list had been refined to the
following:
(1) Violations involving fatalities and serious injuries;
(2) Unwarrantable failure to comply with mandatory health and
safety standards;
(3) Operation of a mine in the face of a closure order;
(4) Failure to permit an authorized representative of the Secretary
to perform an inspection or investigation;
(5) Violations for which individuals are personally liable under
section 110(c) of the Act;
(6) Violations involving an imminent danger;
(7) Discrimination violations under section 105(c) of the Act; and
(8) Violations involving an extraordinarily high degree of
negligence or gravity or other unique aggravating circumstances.
30 C.F.R. § 100.5 (2006).
22

Recently, however, an Executive Order was issued emphasizing the importance of
transparency in administrative enforcement actions generally and especially for policies affecting
enforcement. See Executive Order on Promoting the Rule of Law Through Transparency and
Fairness in Civil Administrative Enforcement and Adjudication, October 9, 2019.

42 FMSHRC Page 195

The formula for special assessments provides for substantial increases in negligence and
gravity points versus those that would be regularly-assessed, but the agency’s authority to refer a
penalty for special assessment is not limited to considerations of negligence or gravity. There is
no penalty increase in the formula based on the size of the operator or frequency of violations.
Accordingly, if a mine operator has an excessive history of violations, MSHA arbitrarily adds
points to negligence and gravity rather than frequency to increase the total points for assessment.
Based upon the addition of points to negligence and gravity, the addition of penalty
points through special assessment often results in a multiple (quadruple or quintuple) increase in
the penalty. These enhanced proposed penalties arise only from the independent decisions of
MSHA officials to heavily penalize a particular violation.
Accordingly, while the regulatory guidance may provide some assistance to MSHA in
specially assessing a penalty, it does not provide adequate guidance to a Judge to ultimately set
the appropriate penalty.
(b)

MSHA’S Program Policy Manual Guidance

MSHA’s Program Policy Manual (“PPM”) also provides some guidance to the agency on
proposing special assessments, but it also falls short of proper guidance to a Commission Judge.
MSHA announced via its PPM that it affirmatively will specially assess a few specific types of
violations, but the types of violations subject to consideration have already been changed without
input from the public, and the non-binding guidance in the PPM may be changed again, at any
time, without notice or comment. III MSHA, U.S. Dep’t of Labor, PPM, Part 100, at 101-02
(Dec. 2013).
Separately, the PPM identifies violations that MSHA officials must consider for special
assessment. III, MSHA, PPM, Part 100, at 101. Together, these categories encompass more than
60 mandatory standards as well as all violations involving an injury or allegedly flagrant
violation. The breadth of scope within which the agency exercises its discretion to specially
assess is enormous and unregulated.23 Coupled with the fact that MSHA assesses less than one
percent of its penalties under the special assessment program, this vast expanse radically
increases the danger for arbitrariness, because, obviously, not every violation so considered
results in a special assessment. Oral Arg. Tr. 60.
The PPM also provides a summary of the internal procedures used to make special
assessment decisions—generally, completion of a Special Assessment Recommendation
(“SAR”) form by a District Manager, transmittal of the SAR to the Office of Assessments,
Accountability, Special Enforcement and Investigations (“OAASEI”) typically for a final
decision, but there is no limiting principle that determines which of these considered violations
will be specially assessed, or how that conclusion is reached. Id. at 102-03. As a result, MSHA
may issue citations with congruent fact patterns to mines of the same size and violation history,
but then propose assessments in which the proposed penalties for one operator or citation are
many multiples higher than the proposed penalty for the other operator or citation. E.g., The
23

MSHA has asserted that its authority to specially assess a penalty is plenary and
unreviewable.

42 FMSHRC Page 196

American Coal Co., 40 FMSHRC 1011, 1043-44 (Aug. 2018) (“Amcoal II”) (sep. op. of Acting
Chairman Althen and Comm’r Young).
There is no structural requirement that MSHA ever account for the basis for its decision
to specially assess a penalty. The Secretary provides a special assessment narrative that briefly
explains the factual allegations in support of the specially assessed penalty. However, this
document does not explain why MSHA singled out this particular citation for special
assessment.24
Further, the Secretary often claims that records related to the special assessment are
privileged and thus not available for the respondent or the Judge. See, e.g., Big Ridge, Inc., 34
FMSHRC 2999 (Nov. 2012) (ALJ). Of course, MSHA has the right to invoke evidentiary
privileges. However, this secrecy related to special assessments creates impediments to
responding to MSHA’s case and may adversely affect the Judge’s ability to evaluate the case
properly.
(c)

Commission Guidance to Judges on Special Assessments

Thus, the American Coal court’s characterization of the proposed special assessment as a
“litigation proposal” is entirely apt. Like all litigating positions, favorable consideration of the
agency’s proposal for a high penalty is subject to the Secretary’s presentation of proof of facts
warranting a high penalty. The mere fact the Secretary has proposed a high penalty is irrelevant.
As we have held, and as appellate courts have affirmed, the Judge must make an independent
assessment based upon the facts and penalty criteria without using the special assessment as any
sort of baseline or reference point.
For all these reasons, the rationale of the Sellersburg principle regarding substantial
divergence cannot be applied to specially proposed penalties. Doing so would perversely
undermine the basis for Sellersburg’s duty to explain. Indeed, understanding that MSHA seeks a
far larger penalty than the amount that the regular assessment formula would dictate, the entire
focus of a Judge’s independent penalty inquiry must be on the factual findings as they relate to
the penalty criteria, rather than on the amount sought by MSHA.
We have recognized the distinction between regular and special assessments, and today
we emphasize it. Two principles apply uniquely to special assessments.
First, the Commission has held that MSHA “bear[s] the ‘burden’ before the Commission
of providing evidence sufficient in the Judge’s discretionary opinion to support the proposed
assessment under the penalty criteria. When a violation is specially assessed, that obligation may
24

MSHA does maintain such records—MSHA Form 7000-32—but it refuses to provide
those records to respondents. Unfortunately, the narrative MSHA does provide may contain only
cursory explanations of the basis for a special assessment. See AmCoal II, 40 FMSHRC at 1027
(Aug. 2018) (“[t]ypically, the narrative findings for special assessments are brief and
conclusory”). In this case, the narrative was more robust than in other cases thereby illustrating
one of the difficulties of an arbitrary system in which the degree of information may vary widely
depending upon the individual judgment of the person preparing the material.

42 FMSHRC Page 197

be considerable.” AmCoal I, 38 FMSHRC at 1993. In American Coal, 933 F.3d at 727, the court
stated that MSHA did not bear any “burden” with respect to a penalty and backhanded MSHA’s
penalty assessment as if it were unimportant—an impotent litigating position. It is necessary to
understand, therefore, that when the Commission used the term “burden” in AmCoal I, 38
FMSHRC at 1993, it did not do so in terms of a preponderance of proof standard of review.
Instead, the Commission meant that, in seeking to sustain the litigating position regarding a
special assessment—that is, an especially large penalty—the Secretary must present evidence to
sustain, in the Judge’s discretion, the need for a large penalty. This requirement recognizes that
MSHA is seeking an extraordinary penalty and must justify its litigation proposal with evidence
on each of the penalty factors.
Second, MSHA’s opaque process for deciding to assess specially and MSHA’s
consideration of only two penalty factors in the assignment of penalty points is not a suitable
basis for a penalty decision by the Commission. Therefore, when MSHA proposes a special
assessment, the Judge must base a decision only upon a complete review of the evidence
pertaining to each of the penalty factors, a weighing of those factors in the context of the facts,
and a final resolution based only upon such careful and fully explained review.
No significance attaches to MSHA’s penalty which is specially proposed for litigation
purposes. The Judge must assess the penalty de novo based only upon the Judge’s findings of
fact related to each penalty criterion.25 Of course, it is entirely appropriate for a Judge to fully
consider the agency’s proposal to treat a given violation as especially egregious for enforcement
purposes. The agency may argue that a violation is exceptional and deserves an enhanced penalty
by explaining its decision before the Judge and supporting the explanation with evidence.
Because the Mine Act provides the Commission and its Judges with the ultimate authority to
assess penalties, a Commission Judge may agree with the agency’s proposed special assessment,
or may assess a greater or lesser amount that is appropriate in his or her assessment of the
statutory factors.
MSHA’s regulations in section 100.3 are a useful tool in maximizing judicial efficiency
and ensuring that regular assessments are consistent, fair, and equitable. For that reason, the
Commission requires Judges to explain significant deviations from proposed regular
assessments.
When MSHA proposes a special assessment, however, there must be a full explication of
the allegations related to each penalty factor. The Judge’s penalty assessment must be
commensurate only with the actual factual findings after hearing. Should the Judge elect to
explain a difference from MSHA’s proposed assessment, that is clearly an option. This
safeguard against arbitrary sanctions is entirely consistent with Sellersburg and with the
Commission’s historical exercise of its independent statutory authority.

25

In AmCoal II, 40 FMSHRC at 1035-38, then Acting Chairman Althen and
Commissioner Young addressed the almost inevitable tug of an MSHA penalty proposal as an
anchor to the Judge’s decision. Judges must avoid the unconscious effect of the special
assessment and act only based on the penalty criteria.

42 FMSHRC Page 198

D. The Concerns in the Dissenting Opinions are Misplaced.

Finally, we must review, albeit briefly, our colleagues dissenting views regarding the
directives established in this opinion. Our colleagues respond to this straightforward opinion that
essentially only reaffirms the right and duty of the Commission to set penalties. Although they
write separately, they say essentially the same thing and are both misplaced.
Contrary to the declaration of our colleagues, our instruction to Judges is firmly grounded
on our majority decision in AmCoal I and is precedential. It goes without saying that the manner
in which the Commission instructs Judges to assess penalties under section 110(i) of the Mine
Act is not a matter for dispute between parties to a Commission proceeding. Our charge, as a
Commission, is to set forth policies, interpretations, and rules, including those governing penalty
assessments under section 110(i).
As a corollary to this principle, our colleagues are incorrect in suggesting that we could
only offer this opinion if the issue of divergence between a Commission assessment and a
MSHA proposal was raised in a Petition for Discretionary Review. Slip op. at 23-24 & n.1, 3637. The principle discussed here involves only a legal issue, and more specifically, a legal issue
raised by the Commission to assure fairness and transparency in its decisions. We review legal
issues de novo, and it is obviously necessary for us to apply the correct legal standard in deciding
cases on review.26
The correct legal standard, as it applies to special assessments, was articulated by the
Commission’s majority decision in AmCoal I. Our decision in that case is a natural extension of
the principles of Sellersburg. In fact, the Commission’s institution of the Sellersburg requirement
to explain substantial divergences between the Judge’s penalty and an MSHA regularly proposed
penalty did not arise out of a petition for discretionary review raising the issue of explanation of
differences. The Commission, there, affirmed its right and duty to assess final penalties. In doing
so, it also imposed a duty to explain a substantial divergence in the Judge’s assessment from a
proposal arrived at through the formally instituted, transparent, regular penalty point system
adopted by MSHA. As we have explained, Sellersburg has functioned as a counter to potentially
arbitrary outcomes, as was AmCoal I. Here, we refine that instruction consistently with its
original and ongoing purpose.
The indecision reflected by a divided Commission created in AmCoal, 40 FMSHRC
1011, is what the circuit court perceived as incoherence driven by legal principles in tension. As
our opinion reflects, however, there is no actual tension. Rather, both the Sellersburg and
AmCoal I precedents are intended to ensure consistent, fair, and principled penalty assessments.

26

Beyond the practical necessity of applying the correct standard, Solar Sources did in
fact specifically object to the Judge’s conclusions as to the penalty and his failure to “adequately
explain the basis for the $68,300 penalty . . . as the Commission directed in American Coal, 38
FMSHRC 1987 (August 30, 2016), on how penalties, including special assessments, are to be
calculated.” PDR at 2 (emphasis added).

42 FMSHRC Page 199

It was incumbent on the Commission to correct the court’s misapprehension of our precedents
and the operation of the Secretary’s special assessment program. That, we have done.27
Here, we reaffirm the core principle that Commission Judges have the authority and duty
to set penalties and that MSHA’s proposed assessments constitute litigating positions. Moreover,
in this opinion, the Commission clarifies that Judges are not required to explain their divergence
from a special assessment.28 To be clear, there is, however, absolutely no prohibition on a Judge
to explain a divergence should the Judge be so inclined. Our colleagues do not dispute that
MSHA’s special assessments are opaque.29 This obscurity gives MSHA the ability to enhance
penalties at its sole discretion without ever committing to a rationale upon which that
determination rests. Further, MSHA has not submitted any substantive aspect of the special
assessment procedures to public notice and comment and it changed its special assessment
procedures from a clearly-expressed, publicly-vetted process.30 The Commission has never
reckoned with this departure from principles of administrative law.
Thus, requiring our Judges to explain divergences from opaque MSHA penalty
assessments serves neither the goal of transparency and public trust nor the principles of fair and
objective assessments.31 On the contrary, such a requirement would interject a foundational bias
toward the enhanced penalty into the consciousness of the trier of fact, whether or not the reason
for the enhancement has been validated by the trial process.
We thus agree that the fact that the penalty is specially assessed—standing alone—is
completely irrelevant. Rather, the Judge must consider the proffered basis for the enhanced
penalty and the evidence supporting it. The Commission then reviews the Judge’s decision to
determine whether substantial evidence supports findings of fact that underlie the penalty
assessment and, in turn, whether the assessment is arbitrary and capricious when based upon
27

The Commission’s instruction certainly does not create any danger or even
significant changes to the fair assessment of penalties that our colleagues seem to fear or
infer in their opinions.
28

The views of the dissenters are internally irreconcilable. They recognize, even
emphasize, the independence of our Judges’ penalty decisions but then find we must require
Judges to take into account or at least explain variances from opaque special assessments. Slip
op. at 24-26, 37-39. Such a belief is at odds with the status of a Secretary’s special penalty
proposal as a uniquely unexplained litigating position.
29

The dissenters do not identify any benefit for requiring an explanation for a
variance from an assessment that was arbitrary from the outset. The decision to assess
specially is discretionary and not governed by any mandated rules. In turn, MSHA makes
the assessment through a system in which facts of the case may have no bearing upon the
increase in the penalty.
30

See slip op. at 14-15 and n.21, supra.

31

Our dissenting colleagues note the motivation for Sellersburg—without any reference
to language in Sellersburg or any other case to support that speculation. Slip op. at 25-26, 37-39.

42 FMSHRC Page 200

facts supported by substantial evidence. The views of our colleagues notwithstanding, this is not
a “new” or “additional” burden of proof on the Secretary (slip op. at 26-27, 37-39); it is the same
burden he bears on every other issue under the Mine Act and the Administrative Procedure Act,
5 U.S.C. § 500 et seq.32
Our decision today does not make any draconian changes, or indeed changes at all, in the
assessment process. We only reinforce the need for all penalties to be independently assessed,
consistent with the Mine Act and our precedents. In order for us to ensure that is done in this
case, and in future cases, we remind our Judges that they are free from unintended and irrational
restraint, or anchoring, in their discretionary decision-making. Where the Secretary properly
explains the basis for a special assessment, the Judge’s independent assessment will be informed
by the facts of the case, and not a perceived need to justify a variance from an opaque special
assessment.

32

One dissenting colleague goes so far as to presume that by retaining the Sellersburg
explanation requirement for regular penalty assessments, we find that regular penalty
assessments are “inherently reasonable.” Slip op. at 38. She misses the point entirely. We do not
find any penalty to be “inherently reasonable;” we credit regular assessments as the product of a
transparent process that provides a basis for the Secretary’s litigating position. There is a
bulwark in that process against arbitrary results, unlike with special assessments. This is the
entirety of the problem: The rationale for the application of Sellersburg does not apply to special
assessments, because the Secretary has refused to provide regularity and transparency to that
process.
We trust that the equivalency our colleague draws between regular and special
assessments does not mean that she actually finds special assessments to be inherently
reasonable, despite the Secretary’s obdurate failure to lift the veil and commit to a thesis for such
assessments as a matter of policy. Such a position would be contrary to the principle we
reinforce today: the right and duty of Judges to make independent assessments in every case,
without being tethered to a policy decision whose foundations may or may not remain viable
post-hearing.

42 FMSHRC Page 201

III.
Conclusion
In light of the guidance set forth in this Decision, and returning to the citation at issue,
remand is essential in this case in the interest of justice. Accordingly, we direct the Judge to
exercise his responsibility to conduct an independent and reasoned analysis, using the record
evidence. That analysis is to include findings of fact or meaningful explanation on each of the
statutory penalty criteria, and particularly in this case, to make findings regarding the operator’s
history of violations and the operator’s actions related to attempting to achieve rapid compliance
after notification of a violation, consistent with the requirements of Commission Procedural Rule
30(a) and section 110(i) of the Mine Act. The Judge should then reassess a civil penalty in
accordance with the established Commission precedent of AmCoal I. Accordingly, we vacate the
Judge’s penalty assessment and remand the case to the Judge so that he may enter a penalty
assessment consistent with this opinion.33

/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

33

Commissioner Traynor concurs with the decision to remand this case to the Judge
based on Parts A and B only.

42 FMSHRC Page 202

Commissioner Traynor, concurring with the majority on Parts A & B and dissenting from the
majority on Parts C & D:
I agree with the majority’s conclusions that the Judge erred in failing to fully consider the
statutory penalty criteria and with their finding that the Judge need not reconcile the differences
between his penalty analysis and the Secretary’s narrative findings. In fact, had the majority’s
analysis ended here—where it should have—I would have likely signed their opinion. Yet, for
the reasons described herein, I regretfully cannot.
The majority purports to decide issues that were not raised before the Judge in the
proceeding below, not addressed in the operator’s petition for discretionary review, and not
briefed to us. Section 113(d)(2)(A)(iii) of the Mine Act, 30 U.S.C. § 823 (d)(2)(A)(iii), requires a
party to “separately number[] and plainly and concisely state[]” each issue for which review is
sought and further states that “[i]f granted, review shall be limited to the questions raised by the
petition.” Commission Procedural Rule 70(g), 29 C.F.R. § 2700.70(g), echoes this restriction.
Here, the question of whether a Judge needs to adhere to our decision in Sellersburg Stone
Company, 5 FMSHRC 287 (Mar. 1983), and explain any substantial deviation between the
Secretary’s special assessment and the Judge’s penalty assessment was not raised in Solar
Sources’ petition. Nor was there an issue raised of whether a Judge must meet a newly
announced and “considerable” burden to justify penalty amounts assessed in cases involving
special assessment proposals. Accordingly, the parties did not have notice or the opportunity to
be heard before the Commission on the issues implicated in the majority’s attempt to upend
long-settled legal principles.1 These issues, which have nothing to do with resolution of the
issues raised in Solar Sources’ petition, are not properly before the Commission.
Tacitly acknowledging their opinion exceeds the scope of the PDR, the majority claims
that it has the right to “review legal issues de novo.” Slip op. at 18. The Mine Act provides a
mechanism for the Commission to review legal issues or Commission policy sua sponte, but the

1

The majority claims that Solar Sources specifically addressed these issues in its PDR
when it alleged that the Judge did not “adequately explain, the basis for the $68,300 penalty . . .
as the Commission directed in American Coal, 38 FMSHRC 1987 (Aug. 30, 2016)” (“AmCoal
I”). PDR at 2; slip op. at 19 n.26. They are incorrect. In AmCoal I, the Commission found error
in a Judge’s de novo penalty assessments and accordingly remanded the citations—originally
subjected to the Secretary’s special assessment procedures—ordering the Judge to reassess the
penalties consistent with the opinion. 38 FMSHRC at 1998. Notably, American repeatedly cites
Sellersburg favorably, for the exact legal proposition that the majority now aims to overturn,
stating explicitly that the Judge is “require[d] [to] explain a substantial divergence from the
[specially assessed] penalty proposed by the Secretary.” Id. at 1996. In fact, the American
decision noted that Sellersburg requirements “do[] not constrain the independence of the Judge
to make a final penalty assessment . . . .” Id. Accordingly, the majority’s instructions here are
certainly not “firmly grounded on our majority decision in AmCoal I and [] precedential.” Slip
op. at 18. Nor can Solar Sources’ PDR be construed as the majority suggests.

42 FMSHRC Page 203

majority did not utilize it here. 30 U.S.C. § 823(d)(2)(B).2 Because the majority has addressed
legal issues sua sponte, without a prior grant of review, they act ultra vires of the Mine Act. 30
U.S.C. § 823(d)(2)(B). (“If a party’s petition for discretionary review has been granted, the
Commission shall not raise or consider additional issues in such review proceedings except in
compliance with the requirements of this paragraph.”) (emphasis added).
Though much of what the majority opinion purports to decide exceeds our statutory
authority and is therefore without precedential value, I write for the benefit of our Judges and the
public about two particular aspects of the majority’s approach to penalty assessment that are
inconsistent with over 35 years of precedent and practice. First, the decision in American Coal
Co. v. FMSHRC, 933 F.3d 723 (D.C. Cir. 2019), is the most recent in a long line of precedents
prohibiting our Judges from exercising their penalty assessment authority differently depending
on whether the Secretary proposes penalties under his regular or special assessment regulations.
Second, equally settled law prohibits our Judges from subordinating their assessment role to the
point counting system used to compute the Secretary’s proposals or any inflexible standard of
proof irrelevant and ill-suited to their independent exercise of wide discretion.
A. Judges Should Continue to Explain Any Substantial Divergence Between a
Proposed Penalty and Final Assessment Without Regard for How the Secretary
Proposed the Penalty.
In American Coal, the D.C. Circuit uncritically observed that our precedent “seems to
point in two directions” by: 1) requiring that our Judges make an assessment independent from
the Secretary’s penalty proposal while at the same time 2) explaining any substantial divergence
from the proposal. 933 F.3d at 728. The majority misreads the opinion, projecting on the court a
“troubling” perception of “an inconsistency in Commission law” that “demands prompt
clarification.” Slip op. at 10. Yet nothing in the court’s opinion describes the “two directions” as
troubling, inconsistent, incompatible, unworkable or in need of change. Ultimately, the court
endorsed our “two directions” as equally necessary by affirming in that case “all that matters
here is that the ALJ satisfied both of those standards, provided an independent and reasoned
basis for the penalty calculation, and supported all relevant factual determinations with
substantial evidence.” 933 F.3d at 728 (emphasis added). Even in a case involving a proposal for
a penalty that was specially assessed, the court held it matters that our Judges explain any
substantial divergence from the government’s proposal.
In an opinion it frames as a response to the D.C. Circuit, the majority in this unrelated
case purports to release our Judges from the responsibility of satisfying one of these two
standards—the substantial divergence explanation—in those cases in which the Secretary
proposes a special rather than regular assessment. This would create the first ever exception to
what has for several decades been a universal requirement in all civil penalty cases that our
2

“At any time within 30 days after the issuance of a decision of an administrative law
judge, the Commission may in its discretion . . . order the case before it for review but only upon
the ground that the decision may be contrary to law or Commission policy, or that a novel
question of policy has been presented. The Commission shall state in such order the specific
issue of law, Commission policy, or novel question of policy involved . . . .” 30 U.S.C.
§ 823(d)(2)(B).

42 FMSHRC Page 204

Judges explain any substantial divergence between the Secretary’s proposal and the final
assessment. See Sellersburg, 5 FMSHRC at 287. The majority’s rationale for this carve-out is
couched in a lengthy explanation of how the Secretary’s discretionary decision to propose a
specially assessed penalty is different than the computation of points under the regular
assessment proposal process. In short, the majority claims the original rationale for the
substantial divergence explanation in our Sellersburg decision—avoiding the appearance that
penalties are arbitrarily raised or lowered after contest—is not present unless the Secretary’s
proposed penalty is rooted in the regular assessment process point calculations. This conclusion
flows from the majority’s belief that only explanations of a divergence from a penalty computed
by the regular point system can preserve “consistency” and “transparency” in our penalty
proceedings. Slip op. at 13-15.
In Sellersburg, we were not, as the majority contends, motivated to require an
explanation of substantial divergence by a desire to foster consistent penalty assessments. Nor
did we seek to foster “consistency” in penalty assessments or “equal penalties across many
operators . . . .” Id. at 13. Consistency is not referenced anywhere in the Sellersburg Stone
opinion or in the Mine Act. And it is not a goal our Judges are required by any other source of
law to pursue.3 See Butz v. Glover Livestock Commission Co., 411 U.S. 182, 186 (1973)
(rejecting argument that agency must achieve “uniformity of sanctions for similar violations”
where no such requirement is found in the enabling statute).
Transparency motivated our Sellersburg decision. There, we introduced the concept of a
substantial divergence explanation with the observation that in our early penalty assessment
cases “the Secretary’s proposed penalties are usually of record in a Commission proceeding.”
5 FMSHRC at 293. We wanted to ensure the Secretary’s recommended penalties would remain a
matter of record, and a Judge’s assessment and explanation of any divergence readily apparent in
the text of our decisions.
Our Sellersburg rule requiring explanation of divergence enables Congress, agency
officials and the public to examine and evaluate the role of both parties to our bifurcated model.
We have for decades required written explanations of substantial divergence in cases involving
both regular and special assessment proposals, in part, because Congress recognized “that the
purpose of civil penalties, 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 and their representatives, as well as the Congress and other interested
parties, can fully observe the process.” S. Rep. No. 95-181, at 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 633 (1978). Any reader of a civil penalty decision can easily ascertain the
penalty amount proposed, and review a Judge’s explanation of why the Commission arrives at a
final assessment greater or less than the proposed amount. Just because such explanation may not
be reducible to a mathematical expression does not mean it is without value. The transparency
benefits of our rule are equally true in special assessment cases and it is difficult to understand
3

The appropriate process for assessing penalties is set forth more fully in Section B,
below, followed by a discussion of the proper standards by which the Commission reviews its
Judges’ assessments.

42 FMSHRC Page 205

how exempting a subset of our cases from the rule providing these benefits could be justified by
transparency concerns.
The majority states they will exempt special assessment cases from our Sellersburg rule
requiring substantial divergence explanations because “the Commission must recognize the
differences between regular and specially assessed MSHA penalty proposals.” Slip op. at 14. But
when we review penalties, any focus on the Secretary’s internal process for proposing penalties
is misplaced. Asking our Judges to distinguish between regular and special assessments to
determine whether or not a substantial divergence explanation is needed is not consistent with
the principle that “[w]hat internal remedial enforcement judgments the Secretary might or might
not have made in suggesting a penalty amount are beside the point.” American Coal Co., 933
F.3d at 727; see also Mach Mining LLC v. Sec’y of Labor, 809 F.3d 1259, 1263-64 (D.C. Cir.
2016); U.S. Steel Mining Co., 6 FMSHRC 1148, 1150 (May 1984) (“[I]t is irrelevant to the
Commission for penalty assessment purposes whether a penalty proposed by the Secretary in a
particular case was processed under [30 C.F.R. §] 100.3 [regular assessment regulation] . . . or
[30 C.F.R. §] 100.5 [special assessment regulation.]”).
B. We Do Not Review a Discretionary Penalty Assessment Decision for Evidentiary
Support, Whether the Proposal is Regularly or Specially Assessed.
We have long held that the discretionary decision to assess a penalty amount “must
reflect proper consideration of the penalty criteria set forth in section 110(i) and the deterrent
purpose of the Act.” Cantera Green, 22 FMSHRC 616, 620 (May 2000). And findings on each
of the penalty criteria must be supported by substantial evidence. But never before the majority’s
decision in this case have we indicated that we will scrutinize the Judge’s discretionary
assessment decision itself for “substantial,” “considerable,” or any other type of evidentiary
support. Never before the majority’s decision have we attempted to apply any burden of proof to
the assessment decision itself (in addition to the section 110(i) findings), let alone a burden that
increases when the Secretary proposes a special rather than regularly assessed penalty.
The majority suggests we apply a seemingly demanding version of substantial evidence
review to penalty assessment decisions we have long reviewed only for abuse of discretion,
explaining that in the case of a specially assessed penalty, the Secretary bears a burden to explain
and justify with substantial evidence that the facts of the case support the proposition that the
particular violation “is exceptional and deserves an enhanced penalty.” Slip op. at 17-18; see also
id. at 17 (“[I]n seeking to sustain the litigating position regarding a special assessment—that is,
an especially large penalty—the Secretary must present evidence to sustain, in the Judge’s
discretion, the need for a large penalty.”).
In The American Coal Co., 38 FMSHRC 1987, 1993 (Aug. 2016) (“AmCoal I”), we
opined that the Secretary “bear[s] the burden before the Commission of providing evidence
sufficient in the Judge’s discretionary opinion to support the proposed assessment under the
penalty criteria. When a violation is specially assessed, that obligation may be considerable.” In
the case at hand, the majority seizes on the conditional phrase, “may be considerable,” as support
for a new proposition—the Commission will scrutinize a Judge’s penalty assessment for
heightened evidentiary support in cases in which the penalty that was originally proposed was

42 FMSHRC Page 206

specially assessed. In the majority’s new standard, the word “may” is now absent. And gone with
that word “may” is the Judge’s wide discretion to independently assess a penalty amount after
considering the statute’s section 110(i) factors and deterrent purpose.
The majority purports to make a Judge’s penalty assessment of contested penalties
reviewable for substantial, even “considerable” evidence. Yet nowhere in AmCoal I did we
express anything close to an intention to so radically alter the foundational standards governing
our review: substantial evidence for each of the findings and then abuse of discretion for the
explanation as to how the penalty amount chosen is supported by the section 110(i) findings and
the Act’s deterrent purpose. Never before have we applied a substantial evidence, considerable
evidence, or any other type of evidentiary review to the Judge’s discretionary choice of penalty
amount. Furthermore, never before has the Commission suggested that the Judge alter his or her
approach to a penalty assessment depending on how the Secretary’s originally proposed penalty
was derived.
When the D.C. Circuit reviewed our decision in The American Coal Co., 40 FMSHRC
1011 (Aug. 2018) (“AmCoal II”), it explicitly rejected the argument that we must “require the
Secretary to prove the grounds for his proposed penalty by a preponderance of the evidence”
explaining that approach “fundamentally misunderstands the ALJ’s task.” American Coal, 933
F.3d at 726. Similarly, no evidentiary burden—whether substantial, a preponderance, or
considerable—can be required as justification for the decision to assess any particular penalty
amount. Such a burden would be inconsistent with the wide discretion we expect our Judges to
exercise when determining a suitable penalty amount at the conclusion of the independent
penalty assessment process described in our precedents.
1. The Judge Makes Evidentiary Findings and then Assesses a Penalty Supported
by those Findings.
That process begins with a Judge making a finding of fact on each of the section 110(i)
penalty criteria by examining and weighing evidence material to each criterion. Each finding
must be backed by substantial evidence. At that point, the Judge must consider the section 110(i)
findings to assess a penalty amount. The Judge has wide discretion to assess any penalty amount
within the statutory minimum and maximum. A Judge is “not required to weigh the criteria in
assessing the penalty in the same manner that the criteria are weighed in the proposal of a
penalty.” Jim Walter Res., Inc., 36 FMSHRC 1972, 1980 (Aug. 2014).4 “Judges have discretion
to assign different weight to the various factors, according to the circumstances of the case.” Id.
at 1979 (quoting Lopke Quarries, Inc., 23 FMSHRC 705, 713 (July 2001)). And a single finding
on only one or two of the six criteria could justify assessment of the statutory maximum even
where findings entered on the other criteria would tend to mitigate a penalty, if rationally
4

Despite the protests of the majority, a Judge has the discretion to assess a high penalty,
for reasons independent of or similar to the Secretary’s original rationale. Accordingly, the
Secretary’s failure to substantiate a particular allegation in his penalty narrative does not abridge
the Judge’s discretion to assess a penalty. Similarly, the Judge’s discretion cannot be diminished
by the contents of or omissions in the Secretary’s Program Policy Manual, specific calculations
in MSHA Form 7000-32, or by the Secretary’s penalty proposal for a different violation at a
different mine.

42 FMSHRC Page 207

explained by reference to the section 110(i) findings or deterrence. See Knight Hawk Coal, LLC,
38 FMSHRC 2361, 2373 (Sept. 2016). For instance, the Commission has held that Judges have
not abused their discretion for more heavily weighing gravity and negligence than the other
criteria. See, e.g., Signal Peak Energy, LLC, 37 FMSHRC 470, 485 (Mar. 2015).5
We have consistently held that the Judge must provide an “adequate explanation of how
these findings contributed to his penalty assessments.” Cantera Green, 22 FMSHRC at 622.
“While the findings and explanations relating to a penalty assessment do not have to be
exhaustive, they must at least provide the Commission with a basis for determining whether the
Judge complied with the requirement to consider and make findings concerning the section
110(i) penalty criteria.” Id. at 621. Finally, where the amount that has been assessed is
substantially more or less than the Secretary’s proposed penalty, the Judge must also explain the
divergence. Sellersburg, 5 FMSHRC at 293.
2. The Commission Reviews the Judge’s Findings for Substantial Evidence and
then Reviews the Judge’s Assessment for an Abuse of Discretion.
Our review of a challenged penalty assessment is a two-step process. First, we review the
findings of fact on each of the section 110(i) criteria under the substantial evidence standard,
looking for “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). Then, we review the Judge’s assessment decision for abuse of discretion, which must be
“bounded by proper consideration of the statutory criteria and the deterrent purpose underlying
the Act’s penalty assessment scheme.” Sellersburg, 5 FMSHRC at 294.
We do not evaluate whether the facts underlying the findings are of the type or quantity
sufficient to justify some burden that varies according to the penalty amount. Where any
argument for subjecting discretionary penalty assessment decisions to an evidentiary standard
“goes wrong is in trying to extend that burden of proof to the Secretary’s suggested penalty
amount.” American Coal, 933 F.3d at 727. The assessment decision itself, unlike the section
110(i) findings, is not a factual finding and therefore not in need of any evidentiary support, let
alone “considerable” evidence, whether it is proposed as regular or special. Sellersburg, 5
FMSHRC at 294 (“[D]etermination of the penalty that should be assessed for a particular
violation is an exercise of discretion by the trier of fact.”); cf. Beall Const. Co. v. OSHRC, 507
F.2d 1041, 1046 (8th Cir. 1974) (“The assessment of penalties by the administrative agency is
not a factual finding but the exercise of a discretionary grant of power. Our review of such
penalties is whether there has been an abuse of discretion.” (internal citation omitted)).
Relatedly, the Secretary is not required to prove facts justifying his decision to propose a special
rather than regular assessment, or facts justifying any divergence between the special assessment

5

The majority’s call for the Commission to review penalty assessments that approach the
statutory maximum to determine if substantial evidence supports a finding that the underlying
violation was “exceptional” cannot be reconciled with such discretion.

42 FMSHRC Page 208

proposal and what the proposal would have been under the formula used to propose regular
assessments.6
Indeed, the point system the Secretary uses to make regular penalty proposals should not
in any way operate to limit or dictate the final amount assessed. And Judges deciding penalty
amounts should decline to create in their minds an imitation of the point system to which they
might subordinate their obligation to assess penalties that will deter violations of the Act.7 The
Mine Act sets the minimum and maximum penalties that can be assessed, and no “amount” or
“type” of evidence is necessary to justify the assessment of a penalty anywhere along the
spectrum ranging from this statutory minimum to maximum amount, as long as supported
findings and deterrence are considered. Where along that spectrum a final assessment is located
does not need to bear any relationship whatsoever to the point system’s “regimented formula
[that] mathematically converts findings regarding the six statutory factors into predetermined
dollar values.” American Coal, 933 F.3d at 725.
Penalty assessments are reviewed only for abuse of discretion. Requiring our Judges to
justify their discretionary decision to assess any particular penalty amount by reference to some
standard of proof would not be consistent with abuse of discretion review. Such a requirement
would encroach on their discretion. Indeed, the D.C. Circuit has expressly held that no more than
a limited set of things must be addressed in a Judge’s explanation of his or her exercise of
discretion, and that these things are sufficient, without more, to adequately explain an assessment
decision:
The ALJ rationally explained his penalty assessments with
reference to each of the six statutory factors, and he expressly
disclaimed any use of the Secretary’s proposed specially assessed
penalties as a baseline or starting point. Rather than discounting
the proposed penalties, he arrived at an independent determination
of a penalty amount that would respond to the seriousness of the
Company’s violations and would deter future violations. The ALJ
also contrasted his judgment with that of the Secretary to the extent
that there were any substantial deviations in his penalty amounts
that would require an explanation. The ALJ need drill no deeper.
Id. at 728 (internal citations and punctuation omitted and emphasis added).

6

The majority here cannot square dicta in its opinion, including over five pages
discussing the difference between a regular and specially assessed penalty proposal, with our
precedential holding that the Secretary’s internal decision to make a regular or special
assessment is “irrelevant to the Commission for penalty assessment purposes.” U.S. Steel Mining
Co., 6 FMSHRC 1148, 1150 (May 1984).
7

In the same way, a proposed special assessment should not be an “anchor” or “starting
point” for an assessment.

42 FMSHRC Page 209

The D.C. Circuit in American Coal was not troubled by the “two directions” that have
guided our penalty assessment process since our decision in Sellersburg. It affirmed them both.
Id.
Accordingly, I strongly dissent from Parts C and D of the majority opinion, in which the
majority asserts in dicta that Judges must exercise their discretionary assessment authority
differently depending on whether the proposed penalty is regular or specially assessed. I also
disagree with the majority’s characterization, also dicta, of our Judges’ highly discretionary
penalty assessment process and the standards we apply to review the same. However, I agree
with the majority in result only as to Parts A and B of their opinion, that the case should be
remanded for specific findings regarding the operator’s history of violations and demonstrated
good faith in achieving rapid compliance and for the Judge to assess a civil penalty.

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

42 FMSHRC Page 210

Commissioner Jordan, dissenting:
I.

The Judge’s Penalty Assessment Should be Affirmed

The Mine Safety and Health Administration (“MSHA”) charged Solar Sources with
violating a safety standard that requires berms at certain locations to prevent vehicles from
overturning. The Judge found a violation and assessed a penalty of $68,300, the amount of the
Secretary’s specially assessed penalty proposal. On appeal, the operator challenges only this
penalty. The majority remands the case, requiring the Judge to explain how the operator’s history
of violations and its good faith abatement of the violation affected his penalty determination. For
the reasons stated below, I believe that remand is unnecessary, and would affirm the assessment.
The citation was issued after an accident occurred in which a dump truck broke through a
berm and went over an embankment to a slurry pit approximately 47 feet below.1 The truck
landed upside down. The driver jumped from the truck before it went over the embankment and
was seriously injured.
The Judge found the violation was a result of the operator’s high negligence and
unwarrantable failure2 and significant and substantial (“S&S”),3 rulings the operator did not
appeal. The Judge noted the Secretary’s contention that the condition existed for a period of time
and that the operator had knowledge that berms were a constant problem requiring attention. 40
FMSHRC 462, 493 (Mar. 2018) (ALJ). In short, this was an extremely serious violation.
Administrative Law Judges are accorded broad discretion in assessing civil penalties
under the Mine Act. Westmoreland Coal Co., 8 FMSHRC 491, 492 (Apr. 1986). A Judge’s
penalty assessment is reviewed under an abuse of discretion standard. U.S. Steel Corp., 6
FMSHRC 1423, 1432 (June 1984).4 As there is ample evidence supporting this assessment, I
find that the Judge did not abuse his discretion.
Section 110(i) of the Mine Act requires that in assessing civil monetary penalties, the
Commission consider six criteria: [1] the operator’s history of previous violations, [2] the
1

The citation charged a violation of 30 C.F.R. § 77.1605(l), which provides: “Berms,
bumper blocks, safety hooks, or similar means shall be provided to prevent overtravel and
overturning at dumping locations.”
2

Unwarrantable failure means aggravated conduct, constituting more than ordinary
negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987).
3

The term “significant and substantial” derives from section 104(d)(1) of the Mine Act,
30 U.S.C. § 814(d)(1), which distinguishes as more serious any violation that “could
significantly and substantially contributed to the cause and effect of a . . . mine safety or health
hazard.”
4

An abuse of discretion may be found where there is no evidence to support the Judge’s
decision or if the decision is based on an improper understanding of the law. The American Coal
Co., 38 FMSHRC 1972, 1984 (Aug. 2016).

42 FMSHRC Page 211

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).
The Judge’s decision focused on two of these factors, gravity and negligence. In
explaining his penalty assessment, the Judge stated:
Having found that the violation identified in Citation No.
9102704 was established and that the Inspector’s evaluation of the
gravity and negligence and his finding of unwarrantable failure and
significant and substantial were demonstrated and that no
cognizable mitigation was advanced, the Court therefore finds, that
upon application of the statutory criteria, the penalty proposed by
the Secretary should be applied.
40 FMSHRC at 495. He stated that the other section 110(i) penalty factors “were duly
considered,” and he mentioned each of them in a footnote. Id. at 495 n.15. “To be clear,” he
noted, “the Court’s penalty determination has been determined by evaluation of the six statutory
criteria.” Id. at 495.
Turning to the gravity factor, this violation created an extraordinarily dangerous—and
potentially fatal—hazard. In his S&S discussion, the Judge concluded that the lack of berms
contributed to the danger of a vehicle veering off the elevated roadway and rolling, or falling,
down the incline. Id. at 494. He emphasized that “[t]here is no question that the haul truck went
through the berm and ended up going over the embankment, landing at the bottom of the slurry
pit and that the haul truck driver, though receiving significant injuries from the accident, was
fortunate to escape from his vehicle.” Id. at 492.
Regarding negligence, the Judge stated (in his discussion of the merits of the
unwarrantable failure allegation):
[T]he Secretary asserts that the duration of the inadequate berm
was: “long enough for the hazard to have been identified and
recorded in the onshift records;” of such extensiveness to cover the
width of the slurry dumping area; without any efforts to address
the hazardous berm’s muddy consistency; and presented an
obvious and dangerous hazard about which the Respondent should
have known of its existence. Id. at 23-24. As stated before, and on
the same bases, and as discussed further infra, the Court agrees
that this was an unwarrantable failure.
Id. at 488. Thus, clearly the Judge determined that the negligence level of the operator was high.
The Commission has acknowledged that a Judge need not assign equal weight to each of
the penalty assessment criteria and that it has previously held that Judges have not abused their

42 FMSHRC Page 212

discretion by more heavily weighing gravity and negligence than the other penalty criteria. See
Knight Hawk Coal, LLC, 38 FMSHRC 2361, 2373-74 (Sept. 2016); Signal Peak Energy, LLC,
37 FMSHRC 470, 484-85 (Mar. 2015); Lopke Quarries, Inc., 23 FMSHRC 705, 713 (July 2001).
Here, the Judge assessed a significant penalty in a case in which he found that a dangerous
condition (that the operator admitted was a constant problem requiring attention) had existed for
a period of time. This does not constitute an abuse of discretion.
Moreover, Commission precedent makes clear that remand is not required in this case. In
Sellersburg Stone Co., 5 FMSHRC 287 (Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984), for
example, the Judge’s decision contained discussion and findings on only two of the six statutory
penalty criteria (negligence and gravity). The decision was “devoid of specific facts and findings
bearing on the remaining four criteria.” 5 FMSHRC at 292. In that case there was a wide
divergence between the proposed penalties and the Judge’s assessments.
Nonetheless, the Commission stated that a remand for the entry of findings on the criteria
was unnecessary and would needlessly prolong the proceedings. In the interest of judicial
economy, it entered the required findings rather than remanding for the Judge to do so, noting
that there was no controversy between the parties concerning the record evidence bearing on
each of these criteria. Id. at 293-94. In fact, the Commission acknowledged that, as in the instant
case, “[t]he uncontroverted nature of the evidence bearing on these criteria may explain why the
Judge did not make express findings in his decision.” Id. at 294 n.9.5
The Seventh Circuit affirmed this decision, explicitly holding that “the Commission’s
entering of undisputed record information as findings was proper under the [Mine] Act.” 736
F.2d at 1153. The court relied on language in the Mine Act stating that “[t]he Commission . . .
may . . . modify the decision or order of the administrative law judge in conformity with the
record.” Id. (citing 30 U.S.C. § 823(d)(2)(C)).
The majority’s insistence on remand in this case is antithetical to the Seventh Circuit’s
conclusion in Sellersburg:
The Commission must remand a case to the ALJ only if it
“determines that further evidence is necessary on an issue of fact.”
Given the Commission’s conclusion that uncontroverted evidence

5

Regarding the operator’s history of violations, in Sellersburg, the Secretary had entered
an exhibit into evidence indicating the number of violations charged and penalties for violations
paid during the relevant two-year period. Sellersburg Stone Co., 5 FMSHRC 287, 294 (Mar.
1983). The Commission determined that therefore the operator had at least a moderate history of
previous violations. Id. In this case, the Secretary entered a similar exhibit into evidence, Ex. P2, to which the Judge referred when referencing the operator’s violation history. Solar Sources
has never challenged the accuracy of this information. Although my colleagues assert that the
Commission cannot make its own findings on this factor, slip op. at 8, I conclude that, given that
there remains no factual dispute regarding the violation history, the parties’ disagreement as to
the significance of the uncontroverted evidence is not a reason to remand the case.

42 FMSHRC Page 213

did not warrant further factual findings, such a remand was not
required in this case.
Id. (citation and footnote omitted).
Similarly, in Knight Hawk, a unanimous Commission affirmed a $70,000 penalty
assessed by the Judge. The Judge below had discussed her findings related to five of the penalty
criteria but did not make express findings about history of violations (although she was aware of
the history). The Commission, relying on Sellersburg, stated that findings may be entered by the
Commission on review based on undisputed record evidence. In the interest of judicial economy,
the Commission made the finding on history, ruling that the operator’s safety record weighed in
favor of a penalty less than $70,000. Nonetheless, it held that the Judge’s determinations
regarding the other criteria supported her penalty assessment, in particular because the gravity of
the violation was S&S and undisputed. It noted that the Judge gave significant weight to the
operator’s negligence, the high degree of danger and the operator’s failure to enforce the safety
policy at issue. 38 FMSHRC at 2373-74.
The Commission’s decision in Signal Peak also countenances against a remand here. In
that case, the operator argued that the Judge did not provide adequate justification to account for
the difference between the Secretary’s proposed penalties ($51,400) and the penalties which the
Judge independently assessed ($83,750). The Commission disagreed, and concluded that, except
to the extent one of them exceeded the statutory maximum, the Judge did not abuse his discretion
in raising the penalty amounts. 37 FMSHRC at 484-85.
In Signal Peak, the Judge’s discussion regarding the history of violations mirrored the
finding at issue here. The Judge stated only: “In terms of the mine’s history of violations, the
court has taken into account GX 21, the certified Assessed Violation and History Report.”
34 FMSHRC 1346, 1382-83 (June 2012) (ALJ). Yet the Commission saw no need to remand the
case for additional analysis of this factor.
In addition, in Spartan Mining Co., 30 FMSHRC 699 (Aug. 2008), the operator argued
that in raising the penalties from the amounts proposed by the Secretary, the Judge erred by
failing to discuss the required penalty criteria under section 110(i). The Commission noted that
the operator specifically took issue only with the two factors of negligence and gravity, and thus
affirmed the Judge’s general discussion of the other four penalty factors as adequate to support
his penalty determinations. Id. at 723-24. Notably, the Judge’s entire discussion of history of
violations and abatement consisted of the following: “The history of violations and Spartan’s
abatement efforts are not a material factor in determining the appropriate penalty liability.”
29 FMSHRC 465, 478 (June 2007) (ALJ). Again, no remand was required.
The majority also remands the case to the Judge to enter findings regarding whether the
operator demonstrated good faith in attempting to achieve compliance after notification of the
violation. Given that the sole evidence in the record regarding abatement confirms that all of the
operator’s efforts were mandated by MSHA, I am hard-pressed to see how this evidence could be
used to change the amount of the penalty.

42 FMSHRC Page 214

Moreover, the Judge discussed the operator’s abatement efforts and their possible effect
on his penalty determination in his discussion of the merits:
[Solar Sources’] Counsel took the position that the remedial
measures the mine took after the incident should factor in the
Court’s final penalty assessment as part of its good faith. Tr. 34748. The Court does not agree . . . . [While Solar Sources] touted the
efforts it made post the berm accident to make matters safer for
dumping, Fields [Steven Fields, the operator’s safety director]
indicated that the mine had to do it per MSHA requiring it. Tr.
516-17.
40 FMSHRC at 487 (emphasis in original).6
I struggle to see how remanding the case to the Judge to enter a finding on whether the
operator demonstrated good faith in attempting to achieve compliance will produce anything
beyond this already sufficient analysis of the issue.
The majority’s reliance on Hubb Corporation, 22 FMSHRC 606 (May 2000), and
Cantera Green, 22 FMSHRC 616 (May 2000), is misplaced. In Hubb, in which the Judge made a
significant reduction in the penalties assessed from the penalties proposed by the Secretary, the
Commission’s ruling was based in part on the Judge’s failure to explain the substantial deviation
between the Secretary’s two proposed penalties and his assessment, which Sellersburg requires.
Hubb, 22 FMSHRC at 612-13. Of course, that is not relevant here, where the Judge assessed the
amount proposed by the Secretary. Furthermore, in Hubb, the Judge did not even allude to the
operator’s abatement efforts, size, or the effect of the penalty on the operator’s ability to continue
in business. For one of the penalties, the Judge failed to mention the history of violations factor
at all. For the other, he said merely that he took the operator’s history into account. 20 FMSHRC
615, 620, 622 (June 1998) (ALJ). Hence, there were a myriad of reasons why remand was
necessary.
Cantera Green is also distinguishable. In that case, the Judge assessed significantly lower
penalties for ten violations despite concluding that the record supported a finding of high
negligence and high gravity for these violations. He found that the operator’s negligence and
gravity were as great or event greater than the Secretary alleged, but the amount he assessed for
the ten violations only ranged from approximately 20 to 70% of the penalties proposed by the
Secretary. For six of these violations, he offered no explanation for this divergence. Cantera,
22 FMSHRC at 618-19.
The Commission expressed concern that the lack of a clear explanation for the assessed
penalties was particularly troublesome because the penalties deviated substantially from those
proposed by the Secretary. Remand was also warranted in that case because the Judge erred in
numerous respects (such as his inconsistent use of the operator’s size factor and a lack of
6

The citation indicates that after the plan was submitted to MSHA and approved, MSHA
considered the violation to be abated. When asked why the operator revised its plan, Fields
stated: “They [MSHA] made us do it.” Tr. 517.

42 FMSHRC Page 215

reasoning as to why he assessed a penalty of $400 for nine violations and $1,500 for the
remaining disputed violation).7 Id. at 622-26.
I do, however, agree with the majority in rejecting the operator’s argument that the
Secretary’s special assessment narrative in his penalty proposal is inconsistent with the Judge’s
ultimate findings. Slip op. at 9. The narrative is no longer relevant once the case is before the
Commission. As the D.C. Circuit recently stated in American Coal Co. v. FMSHRC, 933 F.3d
723, 727 (D.C. Cir. 2019), “[w]hat internal remedial enforcement judgments the Secretary might
or might not have made in suggesting a penalty amount are beside the point.”
When it passed the Mine Act, Congress was mindful of the need for an efficient penalty
scheme, in order to induce operator compliance. The legislative history states that “civil
penalties, once proposed, must be assessed and collected with reasonable promptness and
efficiency.” S. Rep. No. 95-181, at 43 (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
(1978). Remanding this case to the Judge is a needless exercise that will simply delay the
collection of this penalty. Accordingly, I would affirm the Judge, and respectfully dissent.
II.

The Majority’s Refusal to Apply Sellersburg to Penalties Proposed by Special
Assessment is Procedurally Improper and Substantively Incorrect

In a departure from longstanding Commission precedent, the majority instructs our
Judges to treat penalties proposed in accordance with the Secretary’s special assessment
differently from the penalties the Secretary proposes via the regular assessment process.
Reaching out to rule on an issue neither raised nor briefed by the parties, my colleagues conclude
that Judges need no longer explain why their penalty assessments substantially deviate from a
special assessment proposed by the Secretary. Their ruling contravenes recent court of appeals
caselaw in this area.
A. The Majority’s Ruling Exceeds the Scope of the Petition for Discretionary
Review in Contravention of the Mine Act
The Mine Act is quite specific regarding the limitations imposed on Commission review.
Section 113(d)(2)(A)(iii) of the Mine Act, 30 U.S.C. § 823(d)(2)(A)(iii), states that “[i]f granted,
review shall be limited to the questions raised by the petition.” Commission Procedural Rule
70(g), 29 C.F.R. § 2700.70(g), echoes this restriction. Moreover, Commissioners are not
expected to consider or rule on issues that were not raised before the Judge below. Section
113(d)(2)(A)(iii) instructs parties that: “Except for good cause shown, no assignment of error by
any party shall rely on any question of fact or law upon which the administrative law judge had
not been afforded an opportunity to pass.” 30 U.S.C. § 823(d)(2)(A)(iii),
The Commission has consistently rejected attempts by a party to raise issues beyond the
scope of the petition for discretionary review. See, e.g., Central Sand & Gravel Co., 23
7

In both Hubb and Cantera Green, the Commission did direct the Judge to enter
qualitative findings regarding the history of violations, but nothing in these opinions indicates
that the failure to do so would have by itself warranted a remand.

42 FMSHRC Page 216

FMSHRC 250, 260 (Mar. 2001) (declining to depart from precedent and consider a party’s
argument not raised in its petition); Connolly-Pacific Co., 36 FMSHRC 1549, 1553 n.7 (June
2014) (declining to reach the issue of fair notice and due process because it was not raised by the
operator in its petition); Consolidation Coal Co., 18 FMSHRC 1541, 1544 n. 4 (Sept. 1996)
(declining to review a fair notice argument because the operator did not raise it in its PDR).
My colleagues’ disdain for the Secretary’s special assessment process is such that it has
prompted them to reach beyond these statutory boundaries circumscribing the Commission’s
review.8 In an effort to limit the effect of a specially assessed violation in proceedings before the
Commission, the majority would vary the scope of a Judge’s opinion depending on which
method the Secretary used to compute the proposed penalty. Notably, this issue was not raised
before the Judge in the proceeding below. Nor was it addressed in the operator’s petition for
discretionary review or even discussed by the parties in their briefs to us. The majority chooses
to opine extensively on the deficiencies it believes underlie the Secretary’s decision to specially
assess certain violations, and to find fault with the manner in which the Secretary computes such
penalties, but it sees no need to hear from the parties on this issue, including the Secretary,
whose actions are the subject of their ire.
Although the majority, in bringing up this issue, has exceeded the Commission’s proper
scope of review, I feel compelled to respond to some of my colleagues’ most erroneous
assertions.
B. The Requirement that a Judge Explain a Substantial Divergence from the
Secretary’s Proposed Penalty Should Apply to Both Regular and Special
Assessments
Looking for additional support for their procedural overreach, my majority colleagues
rely on the recent decision in American Coal, 933 F.3d 723, for support. Unfortunately, that
opinion does not provide them with even a fig leaf’s worth of cover.
The majority’s effort to distinguish between a Judge’s treatment of regular and special
penalty proposals contravenes the central principle guiding the D.C. Circuit’s opinion in
American Coal: that for purposes of assessing a penalty, it is irrelevant whether the Secretary’s
proposal was calculated under the regular or special assessment regulations. Indeed, the court
emphasized that:
[T]he entire regulatory framework distinguishing between socalled “special” and “regular” assessments applies only to guide
the Secretary. It “do[es] not extend to the independent
8

In rationalizing this unprecedented departure from time-honored statutory mandates, the
majority makes the unremarkable assertion that “it is obviously necessary for us to apply the
correct legal standard in deciding cases on review.” Slip op. at 19. This is undoubtedly true, but
pertains only to the legal standards needed to decide cases before us. Here, because the proposed
and assessed penalties were identical, any opinion on the legal issue of whether the Sellersburg
“substantial deviation” explanation requirement should apply is not only unnecessary but also
unauthorized by law.

42 FMSHRC Page 217

Commission,” and it is “not binding in any way in Commission
proceedings.” . . . .
....
. . . The only penalty calculation that matters is the
Commission’s, which is independent of the Secretary’s.
Id. at 727 (citations omitted).
Moreover, in affirming the Judge’s penalty assessment, the court noted that:
[H]e arrived at an independent determination of a penalty amount
that would respond to the seriousness of the Company’s violations
and would deter future violations. The ALJ also contrasted his
judgment with that of the Secretary “[t]o the extent that there were
any substantial deviations in [his] penalty amounts that would
require a[n] . . . explanation.” The ALJ need drill no deeper.
Id. at 728 (citations omitted). Thus, one of the grounds upon which the court in American Coal
affirmed the Judge’s penalty assessment was precisely because he explained why his penalty
deviated from the Secretary’s proposed special assessment.
Indeed, in special assessment cases my colleagues have essentially flipped Sellersburg on
its head. An explanation will be required if the penalty has not diverged sufficiently from the
special assessment. The Commission decisions in AmCoal illustrate this development.
In The American Coal Co., 38 FMSHRC 1987 (Aug. 2016) (“AmCoal I”), cited by our
colleagues, the Judge assessed a penalty of $43,200. The Secretary’s special assessment penalty
proposal was $69,600. The Commission majority, concerned that the Judge may have been
unduly influenced by the Secretary’s special assessment, vacated and remanded the Judge’s
decision with instructions to the Judge that he explain whether he relied on the special
assessment as a baseline. Id. at 1997. On remand the Judge stated that he did not rely on the
Secretary’s proposed special assessment as a starting point, and he reaffirmed the penalties he
assessed in his initial decision. 38 FMSHRC 2612 (Oct. 2016) (ALJ). A second appeal resulted
in a 2-2 decision. The American Coal Co., 40 FMSHRC 1011 (Aug. 2018) (“AmCoal II”).
Despite the Judge’s assurance, the two majority colleagues concluded that the special
assessments undoubtedly create an “anchoring effect,” id. at 1038, and that the Judge had still
not provided a reasonable basis for what they considered to be unusually high penalties,
especially as compared to the regular assessment MSHA could have proposed. Id. at 1036.
In contrast, a “regular” penalty proposal is considered by the majority to be inherently
reasonable. I suspect no eyebrows would be raised by my majority colleagues should a Judge
decide to impose an amount similar or equal to the amount computed under the Secretary’s
regular assessment formula. Indeed, if a Judge decides to substantially increase the penalty from

42 FMSHRC Page 218

the amount proposed by the Secretary in a regular penalty proposal, our colleagues insist
Sellersburg would require the Judge to explain that divergence.9
Because the higher penalties proposed under the special assessment process are viewed
by the majority as inherently arbitrary, and based on “a secret theory of the case,” slip op. at 9
n.13, a Judge who decides to impose a penalty anywhere close to the specially assessed amount
proposed by the Secretary may find his or her opinion subjected to strict scrutiny. The Judge, as
is the Judge in this case, may be accused of “failing to exercise his own responsibility to conduct
an independent and reasoned analysis using the record evidence. See AmCoal I.” Slip op. at 9
(emphasis in original). Indeed the majority admits as much here, as it claims that requiring an
explanation of divergences between MSHA’s special assessment and the penalty assessed by the
Judge “interject[s] a foundational bias toward the enhanced penalty into the consciousness of the
trier of fact, whether or not the reason for the enhancement has been validated by the trial
process.” Id. at 20 (emphasis added). Apparently, therefore, even if the trial evidence would
support an enhanced penalty, my colleagues will be reluctant to affirm it, having viewed the
Judge as being biased towards MSHA’s proposal.
Consequently, I fear our Judges may conclude the only way to avoid numerous remands,
and demonstrate their independence from what my majority colleagues consider to be the
Secretary’s arbitrary special assessment, is to assess an amount significantly lower than the
figure proposed by the Secretary. Moreover, according to my colleagues’ instruction, the Judge
would not even need to explain the divergence.10
C. Conclusion
For the foregoing reasons, I respectfully dissent from the opinion of the majority.

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

9

An explanation would also be required if his or her assessment was substantially lower
than the Secretary’s proposed regular assessment.
10

I recognize that theoretically a Judge could independently decide to assess a penalty
significantly higher than the special assessment proposed by the Secretary, and consistent with
my colleagues approach, no explanation would be required in that event either.

42 FMSHRC Page 219

ADMINISTRATIVE LAW JUDGE DECISIONS

42 FMSHRC Page 220

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
7 PARKWAY CENTER, SUITE 290
875 GREENTREE ROAD
PITTSBURGH, PA 15220
TELEPHONE: 412-920-7240 / FAX: 412-928-8689

March 3, 2020
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. WEVA 2019-458
A.C. No. 46-02444-487883 A8938

v.
K C TRANSPORT, INC.,
Respondent.

Mine: Elk Creek Plant

ORDER DENYING RESPONDENT’S MOTION FOR SUMMARY DECISION
ORDER GRANTING SECRETARY’S MOTION FOR SUMMARY DECISION
ORDER TO MODIFY
ORDER TO PAY
Before: Judge Lewis
On December 20, 2019, The Secretary of Labor (“Secretary”) and K C Transport
(“Respondent”) filed with the undersigned cross-motions for partial summary decision in WEVA
2019-458.1 The parties settled 18 of the 20 citations included in this docket prior to the motions
for summary decision.2 The two remaining citations at issue in the motions for summary decision
are Citation Nos. 9222038 and 9222040, both for alleged violations of 30 C.F.R. § 77.404(c).3
1

The parties were offered the opportunity to file Reply Briefs and they both did so on
January 10, 2020.
2
A Decision Approving Partial Settlement was issued on December 19, 2019.
3
The full text of the Regulation is as follows:
§ 77.404 Machinery and equipment; operation and maintenance.
(a) Mobile and stationary machinery and equipment shall be maintained in
safe operating condition and machinery or equipment in unsafe condition shall be
removed from service immediately.
(b) Machinery and equipment shall be operated only by persons trained in
the use of and authorized to operate such machinery or equipment.
(c) Repairs or maintenance shall not be performed on machinery until the
power is off and the machinery is blocked against motion, except where
machinery motion is necessary to make adjustments.
(d) Machinery shall not be lubricated while in motion where a hazard
exists, unless equipped with extended fittings or cups.
30 C.F.R. § 77.404.

42 FMSHRC Page 221

Both citations were issued for conditions of trucks owned by Respondent that were in the
parking area of K C Transport’s truck maintenance facility in Emmett, West Virginia (the
“Emmett facility” or “maintenance facility”) at the time the citations were issued. The
Respondent is challenging Mine Act jurisdiction over the Emmett facility and the trucks parked
therein. The parties have stipulated that should this Court find that MSHA had jurisdiction over
the trucks and location, the cited conditions would constitute violations of 30 C.F.R. § 77.404(c),
that both violations were abated in good faith, that the gravity findings are accurate, and that the
negligence for each citation should be modified from moderate to low. The parties further
stipulated that the appropriate penalty amount for Citation No. 9222038 would be $3,908.00 and
the appropriate penalty amount for Citation No. 9222040 would be $4,343.00. Accordingly, the
only matter before this Court is a jurisdictional question.
For the following reasons, I grant the Secretary’s Motion for Summary Decision and
deny the Respondent’s Motion for Summary Decision.
Undisputed Facts
The parties in this case have worked diligently in creating a detailed list of joint
stipulations.4 They are as follows:
1. The Administrative Law Judge and the Federal Mine Safety and Health
Review Commission have jurisdiction to hear and decide civil penalty
proceedings pursuant to Section 105 of the Federal Mine Safety and Health
Act of 1977.
2. On March 11, 2019, MSHA Coal Mine Inspector John M Smith was
conducting inspection activities at the Elk Creek Prep Plant, Mine ID 4602444.
3. The Elk Creek Prep Plant is owned and operated by Ramaco Resources, LLC.
(“Ramaco Resources”).
4. After completing his activities at the Elk Creek Prep Plant on March 11, 2019,
CMI Smith traveled more than a mile up the hollow along the haul-road and
then turned off the haul-road at Right Hand Fork Road and followed Right
Hand Fork Road across a creek about 1000 feet to a location where K C
Transport had constructed a parking area with two maintenance shipping
containers. K C Transport purchased the gravel and stone for the parking lot
and constructed the parking area. K C Transport also has commercial
insurance to cover this facility.
5. Inspector Smith traveled up the haul-road and Right Hand Fork Road because
he was looking for trucks to issue terminations for previously issued citations.
When he reached K.C. Transport’s maintenance lot, he observed the trucks
cited in Citation Nos. 9222038 and 9222040.
4

Joint Stipulations will be designated by JS ¶ followed by the stipulation number.

42 FMSHRC Page 222

6. At the time of the citations, K C Transport was in the process of constructing a
new maintenance shop at that location. The construction materials for a
planned approximately 60’ x 70’ metal building for the new maintenance shop
had arrived at the site but were staged on pallets and the metal building had
not yet been constructed. The parking area for the planned maintenance shop
had been constructed and K C was using two shipping containers and two
service trucks for its maintenance needs.
7. K C Transport is an independent trucking company which provides hauling
services to various businesses, including coal hauling, earth hauling and
gravel hauling.
8. K C Transport provides coal hauling services to various coal mine operators,
including, but not limited to Ramaco Resources.
9. K C Transport operates truck maintenance and storage facilities at five (5)
locations, including one at Bluefield West Virginia, one at Taz[e]well,
Virginia, two at Princeton, West Virginia, one at Man, West Virginia and the
one at issue in this proceeding in Emmett, West Virginia.
10. The new K C Transport maintenance area is located on Right Hand Fork
Road, which is a road off the haulage road, which runs past the Elk Creek
Plant operated by Ramaco Resources. It is located approximately 1000 feet
from the haulage road.
11. The K C Transport maintenance facility is more than a mile up the hollow
from the Elk Creek Plant. The Elk Creek Preparation Plant is the nearest coal
extraction/preparation facility to K C Transport’s maintenance facility.
12. There is a gate at the entrance to the K C Transport facility on Right Hand
Fork Road and there is no other way into the hollow where it is located. At the
time Citation Nos. 9222038 and 9222040 were issued, the gate was in need of
repair and was not operational. KC Transport usually operates this
maintenance facility on a 24-hour, 6 day a week basis. Right Hand Fork Road
dead ends on the other side of the KC Transport facility. The road into the K
C Transport facility is not a coal haulage road but does branch off from a
haulage road.
13. K C Transport shares the parking area for its maintenance facility with a
logging company. Ramaco Resources has no personnel or equipment at the
facility.
14. K C Transport operates both on-road and off-road trucks out of this facility.
The off-road trucks provide haulage for five (5) nearby Ramaco Resources’
mines. The on-road trucks provide earth haulage services for AEP, gravel
haulage services to other customers and coal haulage services for customers
other than Ramaco Resources.

42 FMSHRC Page 223

15. KC Transport asserts that about 60% of the services from this K C facility are
to the five (5) nearby Ramaco Resource mines, including the 3 deep mines, a
strip mine and a highwall mine. The other 40% of K C Transport’s work from
this location is to provide services for companies other than Ramaco
Resources, including American Electric Power (“AEP”) and other coal
operators. For example, for the past 4-5 months, K C Transport has been
working on a large earth moving project for AEP and the trucks working on
this project are parked and maintained at the Emmett shop. Although the
Secretary has no knowledge of these facts, the Secretary does not dispute the
company’s assertions.
16. This facility provides a convenient centralized maintenance facility in Logan
County for KC Transport.
17. Representatives of Ramaco told K C Transport they could use the area where
the trucks referenced in Citation Nos. 9222038 and 9222040 were located for
a maintenance facility and assured K C Transport that this area was not on
permitted, bonded mine property, so Ramaco would not be operating there.
The Secretary has no evidence that K C Transports’ facility is on permitted,
bonded mine property. Ramaco Resources has no plans to operate a coal mine
at the location where K C Transport maintains its maintenance area/shop. K C
Transport uses the property for purposes of maintaining a portion of its truck
fleet, including those trucks servicing the Ramaco Resources mines and
customers other than Ramaco Resources.
18. The haul trucks cited in Citation Nos. 9222038 and 9222040 were owned by
K C Transport and were located at KC Transport’s Emmett, West Virginia
maintenance facility when cited. The haul trucks referenced in Citation Nos.
9222038 and 9222040 were regularly used to haul coal from the five Ramaco
mines to the Elk Creek prep plant at the time of the citations.
19. At the time that CMI Smith inspected the haul trucks referenced in Citation
Nos. 9222038 and 9222040, the trucks were not hauling coal, were not on a
haul-road and were parked at K C Transport’s maintenance area for
maintenance work to be performed on the trucks.
20. On March 11, 2019, K C Transport’s maintenance/shop area, where the trucks
referenced in Citation Nos. 9222038 and 9222040 were located, was property
that was not permitted or bonded by the state of West Virginia. See
Respondent’s Exhibit A (map).
21. Until the Citation Nos. 9222038 and 9222040 were issued, MSHA never
sought to enter or inspect K C Transport’s Emmett maintenance shop or
parking area at any time, from the time K C Transport constructed the parking
lot to the time the citations were issued. MSHA has not attempted to enter or
inspect this area or the trucks while at this location, since the citations.

42 FMSHRC Page 224

22. On one occasion, on April 3, 2018, MSHA did cite a work trailer and muddy
parking area that K.C. Transport had adjacent to where the haulage road
intersects with Right Hand Fork Road. (Citation Nos. 9174394 and 9174395).
However, MSHA vacated the citations for the work trailer and muddy parking
lot. After this incident, K C Transport elected to construct the new facility
approximately 1000 feet away from the haulage road up Right Hand Fork
Road.
23. When Citation Nos. 9222038 and 9222040 were issued, MSHA did not
attempt to inspect the shipping containers, service trucks or any other trucks at
the location, nor did MSHA inspect the logging trucks which were located at
K C Transport’s maintenance area.
24. To get to KC transport’s Emmett facility, it is necessary to pass along the
Ramaco Resources, LLC’s Elk Creek Plant haul-road until reaching the Right
Hand Fork Road hollow where the facility is located. Then it is necessary to
cross a creek and drive 1000’ up Right Hand Fork Road to the facility.
25. KC Transport’s maintenance facility where these trucks were inspected is
located more than a mile from the Elk Creek Plant, approximately 4-5 miles
from three (3) deep mines operated by Ramaco Resources, LLC and six (6)
miles from a strip mines and highwall mines operated by Ramaco Resources.
Thus, the closest location where coal is mined or prepared is more than a mile
from this facility.
26. All of the Ramaco mines are accessed via the haul-road. That haul-road is a
public road for some distance. However, before reaching the Elk Creek Plant,
there is a gate limiting public access to the haul-road beyond that location.
The gate is manned and only authorized persons are permitted beyond that
point. The haul-road beyond the gate is maintained by Ramaco Resources and
is no longer a public road. KC Transport’s maintenance area is also accessed
only by traveling through the gate and up the haul-road to the turn-off at Right
Hand Fork Rd, although Right Hand Fork Road is not part of the haul-road.
27. At various times, the cited trucks have hauled coal from each of the Ramaco
mines to the Elk Creek Plant. The cited trucks were not licensed to haul
products over public roads at the time the citations were issued, but they have
been in the past and they may be in the future.
28. On or about March 11, 2019, the trucks referenced in Citation Nos. 9222038
and 9222040 were only being operated on private land, including haul-roads
operated by Ramaco Resources. There were other trucks parked at that same
location which were used by K C Transport to haul coal and materials other
than coal and for customers other than Ramaco.
29. The cited trucks are inspected regularly by MSHA when they are at the five
(5) Ramaco Resources LLC mines and at the Elk Creek prep plant and along

42 FMSHRC Page 225

the haul-road. They had never previously been inspected at K C Transport’s
maintenance facility/parking area.
30. K C Transport operates about 35 trucks from the Emmett, West Virginia,
Maintenance Facility.
31. The proposed penalty amounts that have been assessed for the violations at
issue pursuant to 30 U.S.C. Section 820(a) will not affect the ability of K C
Transport to remain in business.
32. MSHA Coal Mine Inspector John M Smith was acting in his official capacity
and as an authorized representatives of the Secretary of Labor when Citation
Nos. 9222038 and 9222040 involved in this proceeding were issued.
33. True copies of each of the citations that are at issue in this proceeding along
with all continuation forms and modifications, were served on K C Transport
or its agent as required by the Act.
34. Each of the violations involved in this matter were abated in good faith.
35. Government Exhibit 1 is an authentic copy of Citation No. 9222038, with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of establishing the
accuracy of any statements asserted therein.
36. Government Exhibit 2 is an authentic copy of Citation No. 9222040,5 with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of establishing the
accuracy of any statements asserted therein.
37. Respondent’s Exhibit A is a map of the area. Neither party contests its
authenticity and it may be admitted into evidence for the purpose of
demonstrating the layout of the area and the permitted, bonded areas for the
Court as well as the location of K C Transport’s facility in relation to the Elk
Creek Plant.
38. With respect to Citation Nos. 9222038 and 9222040, K C Transport contests
that MSHA had jurisdiction over the trucks referenced in the citations, while
located at KC Transport’s Emmett, WV maintenance facility. K C Transport
argues that both citations should be vacated for lack of jurisdiction at this
location.
39. With respect to Citation Nos. 9222038 and 9222040, should the administrative
law judge find that MSHA did have jurisdiction over the trucks, while at K C
Transport’s maintenance facility, K C Transport concedes that the conditions
then present would violate 77.404(c) if the trucks had been subject to
5

The parties erroneously listed this citation as 9222038.

42 FMSHRC Page 226

jurisdiction. With respect to Citation Nos. 9222038 and 9222040, should the
administrative law judge affirm the finding that 77.404(c) was violated, the
parties have agreed that the gravity findings set forth in the citations shall be
affirmed.
40. With respect to Citation Nos. 9222038 and 9222040, should the administrative
law judge find jurisdiction and affirm the finding that 77.404(c) was violated,
the negligence for each citation shall be modified from moderate to low.
41. With respect to Citation No. 9222038, should the administrative law judge
find jurisdiction and affirm the finding that 77.404(c) was violated, the parties
agree that the appropriate penalty amount is $3,908.00.
42. With respect to Citation No. 9222040, should the administrative law judge
find jurisdiction and affirm the finding that 77.404(c) was violated, the parties
agree that the appropriate penalty amount is $4,343.00.
43. For purposes of Section 110(i) of the Act, the proposed penalty amounts are
appropriate given the operator’s history of violations and the size of the
operator.
44. Government Exhibit 3 is a photograph depicting how the truck referenced in
Citation No. 9222038 appeared at the time of inspection.
45. Government Exhibit 4 is a photograph depicting how the truck referenced in
Citation No. 9222040 appeared at the time of inspection.
Secretary Motion for Partial Summary Decision, 3-12.6 Respondent’s Motion for Summary
Decision, 1-3; Secretary’s Motion for Summary Decision, 4-5. In addition to the stipulated facts,
the parties each submitted exhibits.
Summary Decision Standard
The Court may grant summary decision where the “entire record…shows: (1) That there
is no genuine issue as to any material fact; and (2) That the moving party is entitled to summary
decision as a matter of law.” 29 C.F.R. § 2700.67(b); see also UMWA, Local 2368 v. Jim Walter
Res., Inc., 24 FMSHRC 797, 799 (July 2002); Energy West Mining, 17 FMSHRC 1313, 1316
(Aug. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986), which interpreted
Fed.R.Civ.P. 56). The Commission has analogized its Rule 67 to Federal Rule of Civil Procedure
6

References to the Secretary of Labor’s exhibits are designated as “SX.” References to
Respondent’s exhibits are designated “RX.” References to the Secretary’s Motion for Partial
Summary Decision are designated “SB” followed by the page number. References to the
Secretary’s Reply Brief are designated “SRB” followed by the page number. References to the
Respondent’s Memorandum of Law in Support of Motion for Summary Decision are designated
“RB” followed by the page number. References to Respondent’s Reply Brief are designated
“RRB” followed by the page number.

42 FMSHRC Page 227

56, which authorizes summary judgments upon a proper showing of a lack of a genuine, triable
issue of material fact. Hanson Aggregates New York, Inc., 29 FMSHRC 4, 9 (Jan. 2007). A
material fact is “a fact that is significant or essential to the issue or matter at hand.” Black's Law
Dictionary (9th ed. 2009, fact). “There is a genuine issue of material fact if the nonmoving party
has produced evidence such that a reasonable factfinder could return a verdict in its favor.”
Greenberg v. Bellsouth Telecommunications, Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (citation
omitted). The court must evaluate the evidence “in the light most favorable to … the party
opposing the motion.” Hanson Aggregates, 29 FMSHRC at 9. Any inferences drawn “from the
underlying facts contained in [the] materials [supporting the motion] must be viewed in the light
most favorable to the party opposing the motion.” Id. Though the moving party bears the initial
burden of informing the court of the basis for its motion, it is not required to negate the
nonmoving party’s claims. Celotex, 477 U.S. at 323. “When the moving party has carried its
burden under Rule 56(c), its opponent must do more than simply show that there is some
metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Scott v.
Harris, 550 U.S. 372, 380 (2007) (citation omitted).
Analysis
This case concerns the limits of MSHA jurisdiction, and like many jurisdictional cases, it
raises difficult, often novel issues, driven by the precise facts of the case. As Judge Manning has
eloquently stated, “Jurisdictional issues under the Mine Act are often factually complex. The
Commission and various federal circuit courts have wrestled with these issues… Whether
MSHA has jurisdiction under the specific facts at issue here will be one of the key issues in these
cases.” Cox Transportation Corp., 22 FMSHRC 568, 569–70 (April 5, 2000) (ALJ). The case is
made even more difficult because even though both parties are arguing about jurisdiction, their
arguments are often not directed at each other.
K C Transport is an independent trucking business that provides hauling services to
various businesses, including coal and gravel mines. JS ¶¶ 7, 8. It owns and operates five
maintenance and storage facilities in Virginia and West Virginia. JS ¶ 9. At issue here are trucks
that were located in the Emmett, West Virginia maintenance facility (hereinafter referred to as
the “maintenance facility”). JS ¶¶ 4-6. The maintenance facility provides off-road trucks for
haulage for five nearby Ramaco Resources mines and on-road trucks for earth haulage services
for American Electric Power (“AEP”), as well as trucks for gravel and coal haulage for other
customers. JS ¶ 14. Approximately 60% of the services from the maintenance facility are for the
five nearby Ramaco Resources mines, including three deep mines, a strip mine, and a highwall
mine. JS ¶ 15. The other 40% of K C Transport’s work from this facility provides services for
AEP and other coal operators. JS ¶ 15. At the time of the citations, K C Transport was in the
process of constructing a new maintenance shop at this location. JS ¶ 6.
In order to get to the maintenance facility, one travels along the Ramaco Resources Elk
Creek Plant haul-road until reaching the Right Hand Fork Road, following that road for
approximately 1,000 feet, until reaching the facility. JS ¶¶ 4, 10, 24. The haul-road “is a public
road for some distance.” JS ¶ 26. The maintenance facility is located more than a mile from the
Elk Creek Plant, approximately four to five miles from three deep mines operated by Ramaco

42 FMSHRC Page 228

Resources, and six miles from strip mines and highwall mines operated by Ramaco. Therefore,
the closest location where coal is mined or prepared is more than a mile from the maintenance
facility. JS ¶ 25.
Here, an MSHA inspector at the Elk Creek Prep Plant traveled more than a mile up the
hollow along the haul-road, then turned at the Right Hand Fork Road and traveled along it for
approximately 1,000 feet, crossed a creek, and arrived at the maintenance facility. JS ¶ 4. Once
he arrived, he cited two trucks that were undergoing maintenance at the off-site K C Transport
maintenance facility for violations of 30 C.F.R. § 77.404(c).7 JS ¶ 5; SX-1; SX-2. The mandatory
standard provides that “repairs or maintenance shall not be performed on machinery until the
power is off and the machinery is blocked against motion, except where machinery motion is
necessary to make adjustments.” 30 C.F.R. § 77.404(c). At the time the trucks were cited, the
trucks were not hauling coal or on a haul-road; rather, they were parked at the maintenance
facility for maintenance work. JS ¶ 19. The cited trucks have hauled coal from each of the
Ramaco mines to the Elk Creek Plant. JS ¶ 27. The parties agree as to the gravity, negligence,
and penalty amounts if this Court finds jurisdiction over the trucks here. JS ¶ 39-43.
Contentions of the Parties
A difficult aspect of this case is that the parties do not seem to be on the same page as to
what issue is before the Court, with the Secretary arguing for jurisdiction over the trucks and the
Respondent arguing against jurisdiction over the maintenance facility. The Secretary states in its
opening brief, “The parties agree that the only issue in dispute concerning the citations is
whether the trucks are subject to MSHA coverage.”8 SB at 1. Throughout its brief, the
Secretary’s arguments are almost entirely in support of the trucks, rather than the facility, being
under MSHA’s jurisdiction. The Secretary clarifies that “whether the maintenance area is a mine

7

Citation No. 9222038 states:
The red Mack tandem coal truck Co# 120 is jacked up with the wheels and
tires off both back axles and is not blocked to prevent motion. The rear of the
truck is jacked up by using blocking under the back end of the bed and using the
motion of the bed when raised to lift the back wheels off the ground. Work is
being preformed [sic] on the brakes located on the back axles of the truck.
Standard 77.404(c) was cited 1 time in two years at mine 4602444 (0 to the
operator, 1 to a contractor).
GX-1. Citation No. 9222040 states:
The bed on the Mack Co#5 coal truck is in the raised position and is not
blocked against motion. A miner is observed standing on the frame of the truck
under the raised unblocked bed. This citation was factor that contributed to the
issuance of Imminent Danger Order No. 9222039 dated 3/11/2019. Therefore, no
abatement time was set. Standard 77.404(c) was cited 2 times in two years at mine
4602444 (2 to contractor 77.404(c)).
SX-2.
8
As will be discussed, infra, the parties did not in fact agree on this being the sole issue.

42 FMSHRC Page 229

subject to MSHA coverage need not be decided in this case to determine whether MSHA
coverage applied to the subject trucks.” SRB at 1.
In contrast, the Respondent states that “all that remains for the Court to decide is the
purely legal issue of whether MSHA had jurisdiction over K C Transport’s Emmett facility.” RB
at 6. The Respondent argues that “because K C Transport’s Emmett facility is not a ‘coal or other
mine,’ as defined in the Federal Mine Safety and Health Act of 1977 (‘Mine Act’), the Court
should find that MSHA was without jurisdiction over the facility and that Citation Nos. 9222038
and 9222040 should be vacated.” RB at 1. The Respondent’s brief vacillates between arguing
against this position that the Secretary does not take and arguing that MSHA cannot assert
jurisdiction over the trucks without jurisdiction over the maintenance facility. RB at 8.
The Secretary argues that the definition of a “mine” was intended to be read broadly, and
that the trucks referenced in the citations are equipment that were used in the extraction and
preparation of coal and therefore subject to Mine Act coverage. SB at 14. The Secretary makes
clear that its argument is that the trucks, not the maintenance facility or any structures on the site,
are under MSHA jurisdiction. SRB at 1. The Secretary argues that though the Act is clear, if this
Court finds ambiguity, the Secretary should be accorded Chevron deference. SB at 15-16. If this
Court does not extend MSHA jurisdiction to the trucks, the Secretary asserts that it would create
“a bifurcated coverage scheme [that] would be impractical, if not impracticable, and would lead
to confusion on the part of miners and the operator itself as to what standards were applicable at
any given time.” Id. at 19. The Secretary refers to this bifurcated coverage between MSHA and
OSHA as “an absurd result.” SRB at 3.
The Respondent argues that off-site facilities, such as the maintenance facility here, are
not under MSHA jurisdiction. RB at 6-7. It further argues that location is key to understanding
whether MSHA has jurisdiction over equipment, and that MSHA cannot simply attach
jurisdiction to a piece of mobile equipment and follow that equipment “wherever it goes.” RB at
2. It argues that MSHA can cite the trucks at issue while they are at any of the Ramaco mines or
Elk Creek preparation plant, but not when they are located in an area that is not under MSHA’s
jurisdiction.
Because the parties’ briefs raise both the issue of whether the maintenance facility is a
mine and whether the trucks are mines, this Court will consider both questions. Based on the
following analysis, this Court rejects the Secretary’s argument that each of these trucks
constituted a “mine” under the Act no matter where they are located. However, this Court also
rejects the Respondent’s argument that the maintenance facility was not a “mine” under the Act.
Rather, this Court finds that the maintenance facility was a “mine” under Section 3(h)(1)(C), and
because the trucks were used in mining and parked at the facility, they constituted “equipment”
under the same section. However, MSHA’s jurisdiction over the trucks is not limitless; though it
is clear that MSHA had jurisdiction in the instant case, it would likely lack such jurisdiction if
the trucks were at a non-mining site performing non-mining activities.

42 FMSHRC Page 230

Case Disposition
The first inquiry here must be “whether Congress has directly spoken to the precise
question at issue.” Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837, 842 (1984); Thunder Basin Coal Co., 18 FMSHRC 582, 584 (Apr. 1996). “If the intent of
Congress is clear, that is the end of the matter; for the court, as well as the agency,
must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842843. “In ascertaining the plain meaning of the statute, courts utilize traditional tools of
construction, including an examination of the ‘particular statutory language at issue, as well as
the language and design of the statute as a whole,’ to determine whether Congress had an
intention on the specific question at issue. K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291
(1988); Local Union 1261, UMWA v. FMSHRC, 917 F.2d at 44; Coal Employment Project v.
Dole, 889 F.2d 1127, 1131 (D.C. Cir. 1989).” MSHA v. Jim Walter Resources, Inc., 22 FMSHRC
21 (Jan. 31, 2000). If it is found that Congress has not addressed the question at issue, “the court
does not simply impose its own construction on the statute… Rather, if the statute is silent or
ambiguous with respect to the specific issue, the question for the court is whether the agency's
answer is based on a permissible construction of the statute.” Chevron, 467 U.S. at 842-843.
Examining the Mine Act, as well as relevant legislative history, I find that Congress has
directly spoken to the precise question at issue. Though the definition of a “mine” under the
Mine Act is broad and was intended to be read expansively, it was not intended to be limitless.
The Secretary’s argument that MSHA has jurisdiction over a truck that was used to haul coal, no
matter where that truck is located, expands MSHA’s jurisdiction to every road, parking lot,
garage, and facility in the country. Mobile equipment such as trucks would essentially become
rolling mines under the Secretary’s interpretation. Under the Secretary’s interpretation, if the
trucks at issue here were hundreds of miles from the mine and were undergoing maintenance at a
private mechanic, MSHA would have jurisdiction over those trucks. If the trucks were parked at
a diner while the drivers ate, MSHA would have jurisdiction. If the trucks were hauling lumber
for a lumberyard, MSHA would have jurisdiction. Beyond the absurdity of MSHA having
geographically and functionally limitless jurisdiction over the trucks, there would also be the
problem that any person working on the truck or driving it at any time might be considered a
miner under Section 3(g) (“‘miner’ means any individual working in a coal or other mine.” 30
U.S.C. 802(g).)
“In enacting the statute, Congress was plainly aware that the mining industry is among
the most hazardous in the country and that the poor health and safety record of this industry has
significant deleterious effects on interstate commerce.” Donovan v. Dewey, 452 U.S. 594, 602
(1981). As a result, Congress took care to put in place a strict regulatory scheme to protect the
health and safety of miners at a mine. However, it carefully described what constituted a mine,
creating three general categories that were geographically and functionally centered. Congress’s
definition does not include trucks in whatever location they may be and whatever they may be
doing. However, the Mine Act clearly defines a mine in a manner that includes, under the facts
of this case, both the maintenance facility and the equipment (or trucks) therein. While MSHA
cannot simply attach jurisdiction to the trucks and follow them wherever they may drive, it can

42 FMSHRC Page 231

assert jurisdiction over the maintenance facility and all the equipment at the facility that is used
for mining.9
Section 4 of the Mine Act makes clear that “Each coal or other mine, the products of
which enter commerce, or the operations or products of which affect commerce, and each
operator of such mine, and every miner in such mine shall be subject to the provisions of this
chapter.” 30 U.S.C. § 803. The Act further provides in Section 3(h)(1) three categories of
definitions for what constitutes a “coal or other mine” as:
(A) an area of land from which minerals are extracted in nonliquid form or, if in
liquid form, are extracted with workers underground, (B) private ways and roads
appurtenant to such area, and (C) lands, excavations, underground passageways,
shafts, slopes, tunnels and workings, structures, facilities, equipment, machines,
tools, or other property including impoundments, retention dams, and tailings
ponds, on the surface or underground, used in, or to be used in, or resulting from,
the work of extracting such minerals from their natural deposits in nonliquid
form, or if in liquid form, with workers underground, or used in, or to be used in,
the milling of such minerals, or the work of preparing coal or other minerals, and
includes custom coal preparation facilities.
30 U.S.C. § 802(h)(1). Because the controversy in this case concerns whether either the
maintenance facility and/or the trucks could constitute a “mine,” it is clear that subsection (A)
concerning land, and subsection (B) concerning private ways and roads, are not at issue.10
Specifically, it is the portion of subsection (C) that mentions “structures, facilities, equipment,
machines, tools…used in, or to be used in, or resulting from, the work of extracting such
minerals from their natural deposits….or used in, or to be used in, the milling of such minerals,
or the work of preparing coal or other minerals,” that the Secretary argues provides jurisdiction
over the trucks. SB at 13.
When analyzing the definition of “mine” under the Act, one must not be “governed by
ordinary English usage,” but rather by the broad definition and intent that Congress set forth.
Donovan v. Carolina Stalite Co., 734 F.2d 1547, 1551 (D.C. Cir. 1984). The Commission has
repeatedly emphasized that “The definition of a ‘coal or other mine’ in section 3(h) of
the Mine Act is broad, sweeping and expansive.” MSHA v. KenAmerican Resources, Inc., 42
9

It should be noted that if MSHA asserts jurisdiction over the maintenance facility,
trucks and other equipment contained on the site, it must conduct inspections “of the mine in its
entirety at least two times a year.” 30 U.S.C. § 813(a). In the instant case, the MSHA inspector
only inspected the trucks, and “did not inspect the shipping containers, service trucks or any
other truck at the location.” JS ¶ 23. It is not entirely clear from the record whether all this
equipment was mining-related, but if so, MSHA would be required to conduct such
comprehensive inspections.
10

In National Cement Co. of Ca. Inc., the Secretary took the position that Section
3(h)(1)(B) covers roads, but not vehicles on those roads. 573 F.3d 788, 794-796 (D.C. Cir.
2009).

42 FMSHRC Page 232

FMSHRC 1, 6 note 12 (Jan. 16, 2020); Jim Walter Resources, 22 FMSHRC at 24; MSHA v.
Justis Supply & Machine Shop, 22 FMSHRC 1292, 1296 (Nov. 03, 2000). This description was
based on the congressional intent of the Mine Act. The Senate Report accompanying the Mine
Act states that “it is the Committee’s intention that what is considered to be a mine and to be
regulated under this Act be given the broadest possibl[e] interpretation.” Donovan v. Carolina
Stalite Co., 734 F.2d 1547, 1554-55 (D.C. Cir. 1984) (quoting S. Rep. No. 461, 95th Cong., 1st
Sess. 37 (1977), U.S. Code Cong. & Admin. News 1977, 3401, 3414). “Close jurisdictional
questions are to ‘be resolved in favor of inclusion of a facility within the coverage of the Act.’ Id.
Following this directive to interpret the definition of a mine broadly, ALJs, the
Commission, and Federal Courts of Appeal have found a broad variety of lands, roads,
structures, facilities, and equipment to constitute a mine. Combined these provide a general
framework for the breadth and limits of MSHA jurisdiction, as well as the appropriate analysis to
determine jurisdiction.
In Marshall v. Stoudt’s Ferry Preparation Co., the Third Circuit held that a preparation
plant that separated low-grade fuel from sand and gravel dredged from a riverbed was a mine.
602 F.2d 589 (3rd Cir. 1979). Analyzing the Act’s use of the words, “structure” and “facility,” the
Court stated that “although it may seem incongruous to apply the label ‘mine’ to the kind of
plant operated by Stoudt's Ferry, the statute makes clear that the concept that was to be conveyed
by the word is much more encompassing than the usual meaning attributed to it[. T]he word
means what the statute says it means.” Id. at 592. Similarly, In Harman Min. Corp. v. FMSHRC,
the Fourth Circuit held that a plant’s “car dropping” facility, where railroad cars were loaded
with coal, was a mine. 671 F.2d 794 (4th Cir. 1981). The Court held that the broad definition of
“mine” included “all of the facilities used at a coal preparation plant.” Id. at 796. In Donovan v.
Carolina Stalite Co., the D.C. Circuit held that a slate gravel processing facility that was
immediately adjacent to a quarry, but was not engaged in direct slate extraction was a mine
because it fit within Section (C)’s inclusion of “structures.” 734 F.2d 1547 (D.C. Cir. 1984).
In National Cement Co. of Ca. Inc., the D.C. Circuit held that the Secretary’s
interpretation of Section 3(h)(1) was reasonable when it argued that Mine Act jurisdiction
extended to a private road leading to the plant. 573 F.3d 788 (D.C. Cir. 2009). In this case, the
Secretary explained the interplay between the three subsections of Section 3(h)(1)(B), which the
Court accepted as reasonable. The Secretary interpreted the word “area” in Subsection (A) as
“all-encompassing because virtually everything in an extraction area ... is necessarily related to
[mining] activity.” Id. at 794. The Secretary interpreted Subsection (B) to cover mining roads,
but not the vehicles traveling on those roads. Id. Lastly, the Secretary interpreted Subsection (C)
to cover mining related vehicles traveling on mining roads. Id. at 795. “Subsections (B) and (C)
can be read to work in tandem.” Id.
In the seminal case, MSHA v. Jim Walter Resources, Inc., the Commission held that a
central supply shop used to repair and maintain electrical and mechanical equipment at nearby

42 FMSHRC Page 233

mines was a mine under the Act. 22 FMSHRC 21 (Jan. 2000).11 The Commission reasoned that
the language of the Mine Act was clear, stating:
The stipulated record is equally clear in establishing that the Central Supply Shop
is a dedicated off-site facility of a (multiple) mine operator where employees
receive, stock, maintain, and deliver equipment, tools, and supplies used at JWR’s
coal extraction sites, preparation plants, and Central Supply Shop, including, inter
alia, rock dust, line curtains, hard hats, machine parts, and conveyor belts.
Consequently, there is Mine Act jurisdiction because a “““mine” includes
“facilities” and “equipment … used in or to be used in” JWR’s mining operations
or coal preparation facilities.
Id. At 25. In dicta, the Commission cited to the W.J. Bokus Industries for the proposition that
“whether a mine operator’s equipment is covered by the Mine Act is not determined by its
location but rather by its function -- that is, whether it is used in extracting or preparing coal.” Id.
at Note 11.
In MSHA v. W.J. Bokus Industries, Inc., the Commission found that gas cylinders kept in
a garage adjacent to an asphalt plant and beside an office used by the mine were under MSHA
jurisdiction. 16 FMSHRC 704 (April 1994). The garage was regularly used by miners on miningrelated tasks. Id. at 708. In W.J. Bokus, it was unclear whether the ALJ found the garage itself to
be under MSHA jurisdiction, but the Secretary’s position appeared to be that the equipment in
the garage was under MSHA jurisdiction because the garage was under MSHA jurisdiction
(“The Secretary assert[ed] that the judge ‘accepted that MSHA had jurisdiction over the garage.’
He infers that the judge would not have examined jurisdiction over items in the garage unless he
assumed that MSHA had jurisdiction over the garage itself.” 16 FMSHRC at 707, FN 9).
However, in reversing the ALJ, the Commission made clear that “we need not reach the issue
raised by the Secretary, that the garage was a ‘structure’ or ‘facility’ used in mining and,
therefore, a ‘mine’ within the meaning of section 3(h)(1) of the Mine Act.” Id. at 708.
In MSHA v. Justis Supply & Machine Shop, the Commission relied on Jim Walter
Resources to conclude that an off-site dragline assembly site was a mine under the Act. 22
FMSHRC 1292 (Nov. 2000). The Commission found that the dragline was equipment “to be
used in” mining coal, and the site and employees at the site were devoted to building the dragline
that would be used at the mine. Therefore, the dragline assembly site was a mine under the Act.

11

Similarly, in MSHA v. U.S. Steel Mining Co., the Commission held that an off-site
central repair shop, which had a separate Mine ID, and “exists and functions to repair and
maintain electrical and mechanical equipment used in or to be used in USSM's underground and
surface coal mines and its coal cleaning plant” constituted a separate “surface coal mine” under
the Act. 10 FMSHRC 146, 149 (Feb. 1988). Also, in MSHA v. W.F. Saunders & Sons, ALJ
Melick held that a preparation plant’s truck shop and storeroom, which was primarily used to
store and repair trucks used in mining, was a mine under the Act.1 FMSHRC 2130 (Dec. 28,
1979) (ALJ).

42 FMSHRC Page 234

In MSHA v. State of Alaska, Dept. of Transp., the Commission held that a SAG Screener,
a mobile piece of equipment that excavated material at pits along a gravel road and which had its
own MSHA Mine ID, was a mine under the Act. 36 FMSHRC 2642 (Oct. 2014). The
Commission examined Subsections (A) and (C) in conjunction and held that even though the
dedicated right-of-way may not fall under the definition of “private ways and roads” in
Subsection (B), it was a piece of equipment used in a mining area.
In MSHA v. Austin Powder, ALJ Andrews rejected the Respondent’s arguments that
because an off-site storage facility was “not employed in” mining at the quarry, it was not a
“mine.” 37 FMSHRC 1337, 1349 (June 8, 2015). He found that the storage facility was used to
store explosives and related materials used in mining, and was therefore a “facility” under the
Act. Id. at 1352. Similarly, In MSHA v. Youngquist Brothers Rock, Inc., ALJ Gill found that
MSHA had jurisdiction to cite a truck that may have been on a section of the mine property
where a restaurant was located. 36 FMSHRC 2492 (Sept. 19, 2014) (ALJ). Judge Gill’s analysis
focused on the location of the truck when it was cited and he found jurisdiction specifically
because it was on an area that fell under the definition of a “mine.” Further relevant to the instant
case, in Youngquist MSHA’s position was that if the truck been outside the mine gates, MSHA
would not have had jurisdiction over it.12 Id. at 2496. In MSHA v. Jeppesen Gravel, ALJ Melick
held that a Caterpillar front end loader was under the Mine Act’s jurisdiction when it was being
used to load gravel in a private way or road appurtenant to the area where the gravel was
extracted. 32 FMSHRC 1749 (Nov. 18, 2010) (ALJ). In MSHA v. Northern Illinois Service Co.,
ALJ Gill held that MSHA had jurisdiction over a service truck and its contents when that truck
was on mine premises, even if it was also used at non-mine locations. 36 FMSHRC 2811 (Nov.
10, 2014) (ALJ).
More recently, ALJ Simonton held that a parking lot and office that were located on mine
property and adjacent to the plant’s active extraction sites was a mine under the Act. MSHA v.
Rain for Rent, 40 FMSHRC 1267, 1271 (Aug. 22, 2018). The Judge emphasized that the
“parking lot is on Natividad Plant property, adjacent to active extraction sites, and used for minerelated purposes.” Id. at 1272. In finding jurisdiction, Judge Simonton concluded that the “office
and parking lot are thus geographically and functionally related to the mining process at
Natividad Plant and are subject to MSHA jurisdiction under the Act.” Id.
In MSHA v. Maxxim Rebuild Co., the Commission held that an off-site maintenance shop
that was used primarily to maintain, repair, and fabricate equipment used in the mining process
was a mine under the Act. 38 FMSHRC 605 (April 2016). However, this decision was reversed
by the Sixth Circuit, in a sweeping decision that rejected Jim Walter Resources and much of the
Commission’s reasoning on jurisdiction. Maxxim Rebuild Co. v. FMSHRC, 848 F.3d 737, 740
(6th Cir. 2017). In looking at the three subsections in the definition of a “mine,” the Court
emphasized, “Location, location, location: All three definitions are place connected and place
12

MSHA has stated this position in several cases. In MSHA v. Drillex, Inc., the inspector
“further confirmed that his enforcement jurisdiction over the respondent is limited to
any trucks actually found on quarry or mine properties, and that in the instant case, he inspected
the truck after it was driven onto the mine site in question.” 9 FMSHRC 1972, 1975 (Nov. 24,
1987).

42 FMSHRC Page 235

driven.” Id. at 742. The Sixth Circuit held that MSHA jurisdiction “extends only to such facilities
and equipment if they are in or adjacent to—in essence part of—a working mine.”13 Id. at 740.
Since the maintenance shop was not attached to or adjacent to a working mine, it did not fall
under the Act’s definition of a mine. Id. at 742. With regards to equipment, the Court held that
such equipment’s use in mining is not dispositive of MSHA jurisdiction. “It does not cover
mining ‘equipment’ or for that matter mining ‘machines, tools, or other property’ wherever they
may be found or made.” Id. at 740.14 In reaching its conclusion, the Court stated that for the same
reason it was rejecting the Commission’s decision in Maxxim Rebuild, it rejected the
Commission’s decision in Jim Walter Resources. Id. at 744. Throughout the decision, the Court
expressed dismay that the Secretary’s position provided no natural limits. It emphasized that
“The Secretary’s interpretation also has no stopping point,” Id. at 743, and that the definition’s
“locational focus” provides such a limit. Id. at 742.
This is not the only instance of a judge expressing that MSHA’s jurisdiction, while broad,
must have limits. In Bush & Burchett, Inc. v. Reich, the Sixth Circuit rejected the argument that
any road appurtenant to a mine was within MSHA’s jurisdiction, stating:
Not only does the statute not compel such a reading, but also such a reading is
contrary to common sense. Without some limitation on the meaning of “roads
appurtenant to,” MSHA jurisdiction could conceivably extend to unfathomable
lengths since any road appurtenant to a mine that connects to the outside world
would necessarily run into yet other roads, thus becoming one contiguous road.
Because of the potential reach of MSHA jurisdiction if the definition in §
802(h)(1)(B) is left unfettered, “private ways and roads” cannot simply mean “any

13

Similarly, in MSHA v. Pickett Mining Group, ALJ Rae found that MSHA lacked
jurisdiction over a Ford tractor. 36 FMSHRC 2444 (Sept. 8, 2014) (ALJ). Judge Rae’s analysis
looked at the location of the tractor and its use. She found that there was no evidence that the
tractor has been or will be used in mining activities, and that at the time of citation the tractor
was not located at any location that could be deemed part of an extraction area.
14
While the Respondent uses the Sixth Circuit position to advance its argument, the
Secretary uses the Commission decision to advance its argument. RB at 10-12; SB at 14. The
Secretary argues that not only is the Sixth Circuit’s reversal of the Commission in Maxxim
Rebuild not binding precedent in this case, which arises out of the Fourth Circuit, but that “the
lower unanimous decision by the Commission affirming MSHA coverage is the applicable
precedent for this case.” SRB at 2. This Court questions the Secretary’s argument that a Circuit
Court reversal (without remand) only disturbs the Commission’s decision in the applicable
Circuit. Nonetheless, whether the Commission’s decision still governs ultimately has little
bearing on the instant decision. This is due to the fact that the Commission’s Maxxim Rebuild
decision does not stand alone for the proposition that off-site facilities and equipment are under
MSHA jurisdiction. Rather, it is but one of many cases over decades of jurisprudence analyzing
Mine Act jurisdiction.

42 FMSHRC Page 236

road.” Otherwise, there could conceivably be no limit to MSHA jurisdiction, a
result Congress clearly did not intend.
117 F.3d 932, 937 (6th Cir. 1997). Similarly, Dilip K. Paul v. P.B – K.B.B., Inc., the Commission
held that an engineering office that was responsible for designing an exploratory shaft, as well as
providing personnel, equipment, and materials, was not a mine under the Act. 7 FMSHRC 1784
(Nov. 21, 1985). The Commission stated that “while we have recognized that the definition of
‘coal or other mine’ provided in section 3(h) of the Mine Act is expansive and is to be interpreted
broadly, the inclusive nature of the Act’s coverage is not without bounds.” Id. at 1787 (citations
omitted).15
Analyzing this jurisdictional map that arises through a review of the outer bounds of the
Mine Act’s definition of a “mine,” the facility and equipment at issue here falls squarely within
the definition. The off-site maintenance facility and trucks at issue here are much like the central
supply shop at issue in Jim Walter Resources, the gas cylinders at issue in W.J. Bokus, the offsite dragline assembly site at issue in Justis Supply & Machine Shop, the off-site Screener at
issue in State of Alaska Department of Transportation, the off-site storage facility at issue in
Austin Powder, and other cases discussed supra. The Respondent is correct that the location of
the trucks and the maintenance facility matter, and that the Secretary’s idea of the trucks being
rolling mines would lead to an absurdity.
However, in this instance, the maintenance and trucks were located four to five miles
from Ramaco’s three deep mines and more than a mile from the Elk Creek Plant. JS ¶ 25. In Jim
Walter Resources, the central shop was not on the property of any one of the coal extraction
sites, but rather one mile from the closest site, six miles from two of the sites, and 25 miles from
the farthest site. 22 FMSHRC at 22. In U.S. Steel Mining Co., the shop at issue was located
approximately eight and a half miles from one mine, five miles from another mine, and a half
mile from the cleaning plant. 10 FMSHRC at 147. The location of K C Transport’s maintenance
facility is not remote from the extraction and processing sites. Indeed, its proximity leads to the
second question concerning the maintenance facility and trucks’ functions.
K C Transport asserted that approximately 60% of the services from the maintenance
facility are to the five nearby Ramaco Resource mines, and the other 40% is split between other
companies, including other coal operators. JS ¶ 15. These services include operating on-road and
off-road trucks used in coal, gravel, and earth haulage. JS ¶ 14. The two cited trucks at issue here
have been used at various times to haul coal from each of the Ramaco mines to the Elk Creek
Plant. JS ¶ 27. The trucks used to haul the coal from the mine to the processing facility fit well
within the Mine Act’s definition of equipment used in the work of preparing coal. The
transportation of coal from those mines to that preparation plant is an integral part of the mining
and preparation process. Furthermore, the maintenance of the trucks at the facility is essential to
15

In MSHA v. Ammon Enterprises, ALJ Zielinski discussed in dicta the question of
whether MSHA would have jurisdiction over trucks loading mined materials that were stockpiled
and separated by a screen, calling it a “gray area.” 2008 WL 4190445 at Note 9 (July 10, 2008)
(ALJ). He further stated that if the mining operations had been closed, “that the loading
of trucks from the stockpiles would not be considered within MSHA's jurisdiction.” Id.

42 FMSHRC Page 237

the coal hauling and preparation process. This interpretation is in line with the Commission’s
reasoning in W.J. Bokus, where the Commission found compressed gas cylinders, a stove, and a
grinder to be equipment used in mining. 16 FMSHRC at 707-709. The Commission reasoned
that miners worked in the garage where the gas cylinders were kept on mining-related tasks, the
grinder had been used to maintain mining equipment, and the stove warmed the garage where the
miners worked. Id.
I find the possibility of the “bifurcated coverage scheme” that the Secretary warns of to
be not quite as absurd as the Secretary states. In fact, it is already in existence many times over in
most aspects of mining and other industries. There are various interagency agreements and
memoranda of understanding between OSHA and MSHA precisely because jurisdiction often
shifts between the agencies. See eg State of Alaska, Dept. of Transportation, 36 FMSHRC 2642;
W.J. Bokus Industries, 16 FMSHRC 704. Despite the Secretary’s dire warnings of a bifurcated
coverage scheme covering the trucks when they are on mines and/or engaged in mining-related
activities, and when they are not on mines engaged in activity unrelated to mining, this Court is
confident that the Department of Labor can adequately determine which agency and statute
provides coverage.16
Therefore, this Court finds that MSHA had jurisdiction over the trucks at issue as well as
the maintenance facility. Accordingly, under the prior agreement of the parties, Citation No.
9222038 is affirmed, but modified to “low” negligence with a penalty amount of $3,908.00.
Citation No. 9222040 is affirmed, but modified to “low” negligence with a penalty amount of
$4,343.00.
ORDER
It is ORDERED that Citation Nos. 9222038 and 9222040 be modified to “low”
negligence, and the Respondent, K C Transport, Inc., is ORDERED to pay the Secretary of
Labor the sum of $8,251.00 within 30 days of this order. 17

/s/ John Kent Lewis
John Kent Lewis
Administrative Law Judge

16

Judge Manning described the various statutory jurisdictions controlled by the Secretary
of Labor thusly: “The Secretary takes what is often called a ‘nooks and crannies’ approach when
interpreting OSHA jurisdiction. OSHA fills in the nooks and crannies that other safety statutes
do not cover.” Cox Transportation Corp., 22 FMSHRC at 580.
17
Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION,
U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO
63179-0390

42 FMSHRC Page 238

Distribution:
Robert S. Wilson, Esq., U.S. Dept. of Labor, 201 12th St. South, Suite 401, Arlington, VA
22202-5450
Stephen S. Adkins, CLR, MSHA, 4499 Appalachian Highway, Pineville, WV 24874
James P. McHugh, Esq. & Christopher D. Pence, Esq., Hardy Pence PLLC, 10 Hale Street, 4th
Floor, P.O. Box 2548, Charleston, WV 25329

42 FMSHRC Page 239

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

March 26, 2020
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 2019-0303
A.C. No. 26-00803-487971 6KB

v.
BRAGG CRANE SERVICE,
Respondent.

Mine: Spanish Springs Pit #6
DECISION AND ORDER

Appearances:

Sonya P. Shao, U.S. Department of Labor, Office of the Solicitor, 350 S.
Figueroa Street, Suite 370, Los Angeles, CA 90071
Perry P. Poff, Donell, Melgoza & Scates LLP, 3300 Sunset Boulevard,
Suite 110, Rocklin, CA 95677

Before:

Judge Simonton
I.

INTRODUCTION

This case is before me on a petition for assessment of civil penalty filed by the Secretary
of Labor, acting through the Mine Safety and Health Administration, against Bragg Crane
Service (“Bragg” or “Respondent”), pursuant to the Federal Mine Safety and Health Act of 1977
(Mine Act), 30 U.S.C. § 801.1 This case involves one Section 104(a) citation alleging a violation
of 30 C.F.R. § 56.16009. The Secretary proposed a penalty of $2,615.00. The citation was
designated as significant and substantial (S&S), highly likely to result in a fatal injury, and
involving high negligence on the part of the Respondent.
The parties presented testimony and documentary evidence at a hearing held in Reno,
Nevada on October 23, 2019. MSHA Inspector Kimberly Hakala testified for the Secretary.
Bragg mechanic/oiler Kyle McPartland, crane operator Zachary Cramer, and branch manager
Dean Stone testified for Respondent. After fully considering the testimony and evidence
presented at hearing and the parties’ post-hearing briefs, I modify Citation No. 9374373 as set
forth below. I assess a penalty of $200.00.

1

In this decision, the joint stipulations, transcript, Secretary’s exhibits, and Respondent’s
exhibits are abbreviated as “Jt. Stip.,” “Tr.,” “Ex. S–#,” and “Ex. R–#,” respectively.

42 FMSHRC Page 240

II.

STIPULATIONS OF FACT

At hearing, the parties agreed to the following stipulations of fact included in their prehearing
submissions:
1. Respondent was at all times relevant to this matter an independent contractor performing
services or construction at Spanish Springs Pit #6.
2. The subject mine is a “mine” as that term is defined in Section 3(h) of the Mine Act, 30
U.S.C. § 802(h).
3. At all times relevant to this case, the products of the subject mine entered commerce, or
the operations or products thereof affected commerce, within the meaning and scope of
Section 4 of the Mine Act, 30 U.S.C. § 803.
4. Bragg Crane Service is subject to the jurisdiction of the Mine Act, 30 U.S.C. § 801, et
seq.
5. These proceedings are subject to the jurisdiction of the Federal Mine Safety and Health
Review Commission and its designated Administrative Law Judges pursuant to Sections
105 and 113 of the Mine Act, 30 U.S.C. §§ 815, 823.
6. 30 C.F.R. § 56.16009 is a mandatory health or safety standard as that term is defined in
Section 3(1) of the Mine Act, 30 U.S.C. § 802(1).
7. The citation contained in Exhibit A attached to the Petition for Assessment of a Penalty
for this docket is an authentic copy of the citation at issue in this proceeding.
8. The individual whose name appears in Block 22 of the citation at issue in these
proceedings was acting in her official capacity as an authorized representative of the
Secretary when the citation was issued.
9. The exhibits offered by the parties are authentic, but no stipulation was made as to their
relevance or the truth of the matters asserted therein.
Joint Prehearing Statement at 3; See Tr. 7.

42 FMSHRC Page 241

III.

SUMMARY OF TESTIMONY

a. The Secretary
MSHA Inspector Kimberly Hakala2 testified for the Secretary. She stated that on
December 10, 2018, she went to Spanish Springs Pit #6 to conduct a regular inspection. Tr. 14.
Once she arrived, she learned that Bragg was on site that day to pick a hopper away from the
primary plant. Tr. 15. She testified that Martin Marietta’s plant manager, Abram Woodward,
accompanied her while she observed the pick, and that he took photos. Tr. 17.
The hopper was lifted off of the plant, rotated, and placed on the ground. Tr. 18, 21, 24,
64–65. Hakala witnessed the entire job from an elevated catwalk, approximately 60–80 feet
away from where the load was ultimately placed. Tr. 44–45, 69–70; see Tr. 17; Ex. S–7, p. 2.
Hakala testified that two tag lines were attached to the load, and that one of the lines was initially
held by a man on an elevated catwalk. Tr. 19, see Ex. S–7, p. 2. She stated that the man moved
along the catwalk while holding the tag line and then threw the tag line to the ground to be
retrieved by another miner. Tr. 19. Then, according to Hakala, a Bragg employee and a Martin
Marietta employee who were both on the ground “moved in”—the Martin Marietta miner to
retrieve the tag line and the Bragg miner to observe where the hopper was in relation to the plant
structure. Tr. 19–20.
Hakala testified that when the two miners moved in towards the tag line, the hopper was
positioned directly above them. Tr. 20. She issued a verbal imminent danger order3 to Woodward
based on her observation that the miners were standing beneath the load and were in danger of
being struck by it. Tr. 21. Hakala stated that Woodward shouted down to the miners, they moved
out from under the load, and “within moments both of them came back in.” Tr. 22–23. After
Hakala told Woodward again to remove the miners from the area, he shouted to them a second
time and they thereafter stayed out from underneath the suspended load. Tr. 23. Hakala
explained that she believed the miners went back in the second time in order to retrieve the tag
line again, since they had dropped it the first time they were told to move away from the load. Tr.
23.
Hakala further testified that after the hopper was placed on the ground, she and
Woodward made their way down to the ground level to have a safety briefing with the miners,
where she explained why she issued the imminent danger order. Tr. 24, 53. She stated at hearing
that McPartland, the Bragg employee on the ground during the pick who identified himself as the
“leadman,” told her during this safety briefing that he was not directly under the load but was
two feet to the side of it, within the “fall zone” of the hopper. Tr. 24–26, 56.

2

Kimberly Hakala has been an MSHA inspector for nearly eight years. Tr. 12. She
previously worked for approximately 10 years in various roles at her family’s gypsum limestone
operation. Tr. 13.
3

This 107(a) order, Order No. 9374371, was issued to Martin Marietta, not Bragg Crane
Service. It was withdrawn by the Secretary at hearing.

42 FMSHRC Page 242

b. The Respondent
Bragg mechanic/oiler Kyle McPartland,4 crane operator Zachary Cramer,5 and branch
manager Dean Stone6 testified for Respondent. McPartland was the signalman for this job, and
asserted at hearing that he has no supervisory responsibility in his position. Tr. 96, 114. He
testified that after the Bragg employees arrived at the mine site on December 10, 2018, they
received site-specific training and were then escorted to where the hopper was located to set up
the crane and had a safety meeting with the Martin Marietta employees involved in the job. Tr.
99–100. McPartland said that the dimensions of the fall zone—the area where the hopper might
end up in the event it fell or tipped over—were not discussed in exact terms. Tr. 133. Once the
rigging was set up and the miners were getting ready to pick the hopper, Inspector Hakala
arrived and asked a few questions. Tr. 102.
McPartland stated that the lift began upon his signal, while he was located on an elevated
catwalk observing the boom angle of the crane. Tr. 105–06. He and one Martin Marietta miner
then went down to the ground level to observe the hopper’s location as it was moving into place.
Tr. 107–08; see Ex. S–7, p. 2. By his estimate, Hakala was 80 to 90 feet away from him at this
point in the pick. Tr. 108.
According to McPartland, the tag line held by the miner who stayed up on the catwalk
was never dropped. Tr. 109. McPartland stated that the miner was preparing to throw the line
down to the Martin Marietta miner on the ground right before Woodward yelled at him not to
throw it. Tr. 109. The load was brought in closer and rotated accordingly—without either tag line
ever being dropped—and then lowered onto the ground. Tr. 108–09, 140–41.
McPartland testified that Hakala talked to him individually once the load was on the
ground. Tr. 115. According to him, she never questioned him about how close he was to the load
or whether he would have been struck by the load if it fell. Tr. 115. McPartland stated that he
remembered his conversation with Hakala to be limited to questions about his name and his role
in the company and about her opinion that more tag lines should have been used. Tr. 116.
McPartland asserted that he moved away as the hopper was moving closer to him, and
that no miner ever entered an area where he would have been struck by the load. Tr. 116, 149.
He stated that the closest he was to the load as it was lowered was 10 feet away. Tr. 117.

4

Kyle McPartland has worked for Bragg as a mechanic/oiler for 11 years. Tr. 95–96.

5

Zachary Cramer has worked as a crane operator for Bragg since January 2016 and has
been a crane operator since August 2015. Tr. 156–58. Prior to becoming a crane operator, he
worked as a certified rigger and signalman for three years. Tr. 160.
6

Dean Stone worked for Bragg Crane from 1977 to 1995 as a crane operator. Tr. 202.
After a hiatus from the industry, he returned to Bragg in 2009 and has been a branch manager
since. Tr. 203.

42 FMSHRC Page 243

Zachary Cramer operated the crane during the inspection at issue. According to Cramer,
it was Martin Marietta—not Bragg—that decided to use two tag lines to control the load. Tr.
164–65. He testified that at one point, he heard someone yell “stop, don’t throw the tag line
down” as the Martin Marietta crew member on the catwalk holding the tag line was coiling up
the line and apparently preparing to throw it down. Tr. 170. He stated that the miner never threw
the line down and held onto it until the hopper was on the ground. Tr. 170.
Cramer testified that a fall zone of 10 feet was identified prior to the pick, and that
everyone involved in the job was told to stay 10 feet clear of the hopper. Tr. 173–74. He stated
that he never saw anyone enter the fall zone, and that no one was ever in danger of being crushed
by the hopper. Tr. 168, 172. He said that if he had seen someone in the fall zone, he would have
stopped operation of the crane immediately. Tr. 168. Cramer also testified that though he heard
Inspector Hakala was on site that day, he never saw or spoke to her. Tr. 163.
IV.

PARTY ARGUMENTS

a. Secretary’s Argument
The Secretary argues that Respondent violated 30 C.F.R. § 56.16009 when employee
Kyle McPartland failed to stay clear of a suspended load. Secretary’s Post-Hearing Brief (Sec’y
Br.) at 6–7. The Secretary alleges that the miner on the catwalk behind the hopper threw the tag
line he was holding down to the Martin Marietta maintenance worker on the ground. Id. at 3.
Following this, the Martin Marietta miner moved in to retrieve the tag line, and McPartland
moved in to observe the hopper. Id.; Tr. 19, 46. Inspector Hakala observed the miners directly
under the suspended load, and issued a verbal imminent danger order to plant manager Abram
Woodward, who shouted down to the miners to get out from under the load. Tr. 20–21; Sec’y Br.
at 3. The Secretary argues that both miners then went back into the fall zone and Hakala issued a
second verbal order for them to move out from under the load. Id. After the second warning, they
stayed out from under the load. Sec’y Br. at 3; Tr. 22–23.
The Secretary argues that Hakala then came down to the ground level and spoke with the
miners as a group. Tr. 60–61; Sec’y Br. at 3–4. During that discussion, McPartland admitted to
being two feet to the side of the hopper’s vertical fall line. Tr. 24; Sec’y Br. at 4. The Secretary
contends that the violation should remain designated as high negligence and that any injury
resulting from the violation would be fatal. Sec’y Br. at 7–8.
a. Respondent’s Argument
Respondent contends that the citation should be vacated because miners were neither
directly under the load nor in the load’s fall zone at any time during the pick. Respondent’s PostHearing Brief (Resp. Br.) at 13. Respondent alleges that the miners involved in the pick
operation stayed a safe distance from the hopper and moved away as the load moved. Id. at 13;
Tr. 168–69. If anyone had gone under the load or into the fall zone, McPartland or Cramer would
have stopped work. Resp. Br. at 12, 13; Tr. 117, 168.

42 FMSHRC Page 244

Alternatively, Respondent argues that if a violation occurred, “there was no reasonable
likelihood that the crane’s rigging would fail, or that any employee was otherwise in jeopardy of
being injured by the load.” Id. at 14. Respondent therefore asserts that there was no likelihood of
injury and no negligence. Id. at 15.
V.

DISPOSITION

a. Fact of Violation
Inspector Hakala alleged in Citation No. 9374373 that Respondent violated 30 C.F.R. §
56.16009:
Two miners were observed under an approximate 40,000 pound suspended load
while attempting to remove the hopper from the Primary Plant. One miner was
directing the load and the other miner was trying to grab the suspension line from
a third miner who was above the load. The hopper was suspended approximately
20–25 feet above the miners. This condition exposes miners to fatal type injuries
in the event of an accident. A verbal imminent danger order was issued to the
mine's Plant Manager. Order # 9374371 was issued in conjunction with this
citation and citation #9374372.
Ex. S–3.
The standard provides that “[p]ersons shall stay clear of suspended loads.” 30 C.F.R. §
56.16009. Hakala determined that the violation was highly likely to result in injury, that the
injury could reasonably be expected to be fatal, and that the violation was significant and
substantial (S&S) and affected two people. Ex. S–3. She determined the violation was the result
of high negligence. Id.
It is undisputed that § 56.16009 requires miners to not only stay out from directly under
suspended loads, but to also stay clear of the area that could be affected if a load were to fall.
Sec’y Br. at 6; Resp. Br. at 10–12; see Anaconda Co., 3 FMSHRC 299, 301 (Feb. 1981)
(considering substantively identical rule later recodified at § 56.16009 per Recodification of
Safety and Health Standards for Metal and Nonmetal Mines, 50 Fed. Reg. 4048-01 (Jan. 29,
1985)). The regulation aims “to prevent persons from being hit by such loads through barring
persons from locating within a hanging load’s possible arc or radius.” Haines & Kibblehouse,
Inc., 30 FMSHRC 504, 517 (June 2008) (ALJ).

42 FMSHRC Page 245

The Commission has long held that “[i]n an enforcement action before the Commission,
the Secretary bears the burden of proving any alleged violation.” Jim Walter Res., Inc., 9
FMSHRC 903, 907 (May 1987); Wyoming Fuel Co., 14 FMSHRC 1282, 1294 (Aug. 1992). The
Commission has described the Secretary’s burden as:
The burden of showing something by a “preponderance of the evidence,” the most
common standard in the civil law, simply requires the trier of fact “to believe that
the existence of a fact is more probable than its nonexistence.”
RAG Cumberland Res. Corp., 22 FMSHRC 1066, 1070 (Sept. 2000); Garden Creek Pocahontas
Co., 11 FMSHRC 2148, 2152 (Nov. 1989). For the reasons that follow, I find that the Secretary
has presented sufficient evidence to show that McPartland went into the fall zone in violation of
§ 56.16009. However, I find that he did not go directly under the suspended load.
During this inspection, Bragg’s crane lifted a 40,000 pound hopper from Martin
Marietta’s primary plant and lowered it onto the ground as depicted in Exhibit 7, page 3. While
observing the job, Hakala stood on an elevated catwalk near where the hopper was located before
it was lifted off of the plant. Tr. 43; Ex. S–7, p. 2, 3. Consequently, the load moved away from
her as it was lowered onto the ground. By both Hakala’s and McPartland’s estimates, Hakala was
approximately 80 feet away from the miners when she allegedly observed them walk into the fall
zone of the suspended load. Tr. 44, 108. Therefore, in addition to her less-than-ideal vantage
point, she was a significant distance from the miners on the ground.
At hearing, Hakala testified numerous times that the miners appeared to go directly under
the suspended hopper. Tr. 20, 21, 47, 69. However, she was inconsistent when asked about
particular details of the violation. When asked during cross-examination whether McPartland
was in any danger at the time the critical photo in Exhibit 7, page 2 was taken, she said that “it’s
possible if this thing were to tip that he would be really close to that fall zone where he’s at right
now.” Tr. 45–46 (emphasis added). When later questioned by the court about the same photo,
Hakala said that the entire area inside of the pictured yellow bollards—within which McPartland
is standing in the photo—was within the fall zone of the hopper with the hopper in its
photographed location. Tr. 85–86. On re-cross, Hakala was again asked if anyone was in the fall
zone at the time the photo was taken. Tr. 91. She responded that “he’s in a position where he
could be as it continues to move.” Tr. 92 (emphasis added). It is unclear whether Hakala believed
McPartland was really close to the fall zone, definitely in the fall zone, or possibly in the fall
zone at the time the photo was taken. Moreover, she evaded and ultimately failed to answer
Respondent’s question about how high the load was at the precise time the violation occurred,
instead only repeating her estimation of the height of the load at the beginning of the pick. Tr.
81–82.
Given the above inconsistencies in Hakala’s testimony and her sub-optimal viewpoint
during the inspection, I find that the Secretary has failed to show by a preponderance of the
evidence that McPartland was ever directly under the suspended load.
Crucially, the Secretary failed both at hearing and in his post-hearing brief to articulate
the specific parameters of the fall zone in this case. I ascertain nevertheless that the fall zone of

42 FMSHRC Page 246

the suspended hopper was 10 feet around the load, particularly because Cramer, Bragg’s crane
operator, testified that “a fall zone was identified” and that people were told to stay 10 feet clear
of the load. Tr. 174.
In its correspondence to MSHA four days after the inspection, Bragg stated that “no
employee was ever less than 6 to 10 feet from the vertical fall line of the suspended hopper.”
Ex. R–A, p. 1 (emphasis added). However, according to Hakala’s notes, written as she
interviewed the miners following the pick, McPartland asserted that the miners were never
directly under the load but were approximately two feet from the vertical fall line. Ex. S–4, p. 1;
Tr. 26–28. Though the exact distance between McPartland and the vertical fall line at the
moment of violation may be indeterminate, I find that sufficient evidence supports the finding
that he violated 30 C.F.R. § 56.16009 by entering the established fall zone of 10 feet.
Accordingly, the fact of violation is affirmed.
b. Gravity
A violation is significant and substantial (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 Gypsum
Co., 3 FMSHRC 822, 825 (Apr. 1981).
In order to uphold a citation as S&S, the Commission has held that the Secretary of Labor
must prove: 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).
The Commission has held that the second element of the Mathies test addresses the extent
to which a violation contributes to a particular hazard. Newtown Energy, Inc., 38 FMSHRC
2033, 2037 (Aug. 2016). Analysis under the second step should thus include the identification of
the hazard created by the violation and a determination of the likelihood of the occurrence of the
hazard that the cited standard is intended to prevent. Id. at 2038. At the third step, the Secretary
must prove there was a reasonable likelihood that the hazard contributed to by the violation will
cause an injury, not a reasonable likelihood that the violation, itself, will cause injury. West
Ridge Resources, Inc., 37 FMSHRC 1061, 1067 (May 2015) (ALJ), citing Musser Eng'g, Inc., 32
FMSHRC 1257, 1280–81 (Oct. 2010. Evaluation of the four factors is made assuming continued
normal mining operations. U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984).
Hakala explained at hearing that she designated this citation as S&S because “it was
reasonable to believe that there was an injury of a fatal type that would occur.” Tr. 36. She
testified that she designated the citation as highly likely because “it was highly likely that they
could be crushed by this load should it fall.” Tr. 34 (emphasis added).

42 FMSHRC Page 247

I have already determined that Bragg violated § 56.16009, a mandatory safety standard,
because McPartland entered the fall zone of the suspended hopper. The safety hazard posed by
the violation is that the suspended load could injure a miner on the ground if it were to fall. I
find, however, that it is unlikely this hazard would occur. Though an injury would be of a fatal
nature if the load were to fall, Hakala’s determination that such an event was highly likely is
incorrect. Bragg prepared carefully and took the precautions necessary to ensure that the hopper
would be lifted and relocated without incident. See Tr.120–28; see also Ex. R–A. The load was
unlikely to fall.
Worth noting here, mine operator Martin Marietta Materials, Inc. was issued a nearly
identical citation for this violation. The citation was settled in Docket No. WEST 2019-0228. In
his settlement motion in that case, the Secretary stated that “[p]ersons were clear of (not under)
the load.” Mot. For Settlement at 3, Martin Marietta Materials Inc., WEST 2019-0228. The
Secretary requested that the court modify the gravity designations to reflect that injury was
unlikely and that the violation was not S&S. The court accepted the Secretary’s explanations for
the modifications and approved the settlement. Decision Approving Settlement, Martin Marietta
Materials Inc., WEST 2019-0228. Because the representations made in that related operator case
differ from the Secretary’s position in the present case, the Court instructed the parties to address
whether the doctrine of judicial estoppel affects this proceeding.7 Unpublished Order dated Nov.
12, 2019. After briefing the issue of judicial estoppel, the Secretary affirmatively chose not to
brief how this violation was S&S or highly likely to result in a fatality. Sec’y Br. at 5–6. Without
invoking judicial estoppel, I find that the settlement reached in WEST 2019-0228 nevertheless
lends notable support to the notion that this violation was unlikely to result in injury and was not
S&S.
Because injury was unlikely, the third factor of the Mathies test is not met. I find that the
this violation was unlikely to result in injury, that the injury could reasonably be expected to be
fatal, that two people were affected, and that the violation was not S&S.
c. Negligence
Under the Mine Act, operators are held to a high standard of care, and “must be on the
alert for conditions and practices in the mine that affect the safety or health of miners and to take
steps necessary to correct or prevent hazardous conditions or practices.” 30 C.F.R. § 100.3(d).
MSHA’s regulations define reckless disregard as conduct which exhibits the absence of the
slightest degree of care, high negligence as actual or constructive knowledge of the violative
condition without mitigating circumstances; moderate negligence as actual or constructive
knowledge of the violative condition with mitigating circumstances; and low negligence as
actual or constructive knowledge of the violative condition with considerable mitigating
circumstances. 30 C.F.R. § 100.3: Table X.
7

Discussed by the Supreme Court in New Hampshire v. Maine, the doctrine of judicial
estoppel prevents parties from taking a certain position in a legal proceeding and then assuming a
contrary position in a later proceeding. 532 U.S. 742, 749–50 (2001). Because the respondents
are different in these cases, I will not invoke the doctrine. However, I have taken judicial notice
of the representations made and settlement reached in the corresponding operator case.

42 FMSHRC Page 248

Inspector Hakala designated the citation as high negligence, explaining at hearing that
McPartland, as the “individual in charge, had direct knowledge and he was involved in the
imminent danger and the violation itself.” Tr. 35. I find that the Secretary failed to credibly
establish that McPartland was in charge. McPartland credibly testified that he did not have any
supervisory responsibility. Tr. 96.
I find that Bragg’s negligence is low. McPartland should not have entered the fall zone,
but based on the testimony and evidence presented in this case, it is clear to me that to the extent
he entered the fall zone, his presence there was momentary. Furthermore, Bragg took
comprehensive safety precautions ahead of and during the pick. For instance, the miners
involved in the job all took part in a safety meeting prior to the pick. Tr. 100–01. In its
configuration that day, the crane was authorized to lift a load much heavier than the hopper. Ex.
R–A, p. 7, see Resp. Br. at 6–7. The rigging utilized was also rated for far more weight than was
being lifted. Resp. Br. at 7.
Given the considerable mitigating circumstances, I reduce Bragg’s negligence from high
to low.
VI.

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). 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).

42 FMSHRC Page 249

The Secretary proposed a regularly assessed penalty of $2,615.00. Bragg has no
history of previous violations. Bragg did not present evidence regarding its size or argue
that the size of the penalty was disproportionate. Further, Bragg did not contend at
hearing or in its submissions in this case that the penalty amount would affect the
company’s ability to continue in business. As discussed in greater detail above, I find this
violation to be non-S&S and unlikely to result in a fatal injury. I reduce Bragg’s
negligence from high to low in light of the significant mitigating circumstances. No
evidence was presented on good faith in compliance. In light of these considerations, I
assess a penalty of $200.00.
VII.

ORDER

Respondent is hereby ORDERED to pay the Secretary of Labor the total sum of
$200.00 within 30 days of this order.8

/s/ David P. Simonton
David P. Simonton
Administrative Law Judge
Distribution: (Email9)
Sonya P. Shao, U.S. Department of Labor, Office of the Solicitor, shao.sonya.p@dol.gov
Perry P. Poff, Donell, Melgoza & Scates LLP, perry@oshalaw.net

8

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.
9

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 250

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9900 / FAX: 202-434-9954

March 27, 2020
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. PENN 2018-0243
A.C. No. 36-07230-467980

v.

Docket No. PENN 2018-0255
A.C. No. 36-07230-470217

CONSOL PENNSYLVANIA COAL CO.,
LLC,
Respondent

Bailey Mine
DECISION

Appearances:

Matthew R. Epstein, Esq., Office of the Solicitor, U.S. Department of
Labor, Philadelphia, Pennsylvania, for Petitioner;
James McHugh, Esq., Hardy Pence PLLC, Charleston, West Virginia, for
Respondent.

Before:

Judge Bulluck

These cases are before me upon Petitions for Assessment of Civil Penalty filed by the
Secretary of Labor (“Secretary”), on behalf of the Mine Safety and Health Administration
(“MSHA”), against Consol Pennsylvania Coal Company, LLC (“Consol”), pursuant to section
105(d) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(d).
The Secretary seeks a total penalty of $11,067.00 for ten violations of his mandatory safety
standards.1
A hearing was held in Pittsburgh, Pennsylvania. The following issues are before me: (1)
whether the violations were attributable to the level of gravity alleged; (2) whether the violations
were attributable to the degree of negligence alleged; and (3) the appropriate penalty. The
parties’ Post-hearing Briefs and Consol’s Reply Brief are of record.
For the reasons set forth below, I AFFIRM two citations, as issued, and three citations,
as modified; and assess penalties against Respondent.

1

The parties reached a settlement on five of the ten contested citations. The total civil
penalty proposed for the remaining five citations adjudicated in this proceeding is $7,409.00.

42 FMSHRC Page 251

I. Joint Stipulations
The parties have stipulated as follows:
1. Respondent is an operator, as defined in section 3(d) of the Mine Act, at the mine where
the citations were issued.
2. Bailey Mine is a mine, as defined in section 3(h) of the Mine Act.
3. The operations of Respondent at Bailey Mine are subject to the jurisdiction of the Mine
Act.
4. This proceeding is subject to the jurisdiction of the Federal Mine Safety and Health
Review Commission and its designated Administrative Law Judge, pursuant to Mine Act
sections 105 and 113.
5. Bailey Mine is owned by Respondent.
6. Payment of the proposed penalties will not affect Respondent’s ability to remain in
business.
7. The individual whose name appears in Block 22 of each citation in contest was acting in
an official capacity and as an authorized representative of the Secretary of Labor when
the citations were issued.
8. The citations were properly issued and served by a duly authorized representative of the
Secretary upon an agent of Respondent at the date, time, and place stated in each citation,
as required by the Act.
9. Exhibit A to each of the above-captioned dockets contains authentic copies of the
citations at issue.
10. Respondent stipulates to the authenticity and admissibility of the R–17 certified mine
history forms (P–9).
Tr. 14-16.
II. Factual Background
Consol owns and operates the Bailey Mine, an underground coal mine in Wind Ridge,
Greene County, Pennsylvania. On May 17, 2018, Walter Young, an MSHA inspector and
ventilation specialist, conducted an E02 methane spot inspection of the mine, accompanied by
his supervisor Jeremy Williams, Consol respirable dust coordinator John Opfar, and Consol
safety inspector Cody Rogers. Tr. 270-72. Young cited Consol for two worn high pressure
shield hoses on the 6-J longwall working section; and wet accumulations of combustible
materials at the 6-J working section conveyor belt storage unit. Exs. P–5, P–6.

42 FMSHRC Page 252

On June 28, 2018, Inspectors Young and Williams returned to the mine for another
methane spot inspection, accompanied by Consol safety inspectors James Jones and Matt
Cunningham. Tr. 58-60. Young observed several conditions for which he cited Consol: an
inadequately ventilated charging battery in the No. 3 crosscut, between the No. 3 belt and No. 2
track entries; an energized ISE box on the pump car in the No. 2 track entry with the outby door
ajar and disconnected external control levers; and an unsupported area of mine roof between the
last longwall shield and the 5-L tailgate travelway. Exs. P–2, P–3, P–4.
III. Findings of Fact and Conclusions of Law
1.

Citation No. 9077362
A. Fact of Violation

Inspector Young issued 104(a) Citation No. 9077362 on May 17, 2018, alleging an
“S&S” violation of section 75.1725(a) that was “reasonably likely” to cause an injury that could
reasonably be expected to result in “lost workdays or restricted duty,” and was caused by
Consol’s “moderate” negligence.2 The “Condition or Practice” is described as follows:
The Mine Operator failed to maintain the high pressure shield to
shield hoses on the 6-J Longwall Working Section (039-0 MMU),
inby the number 10.5 crosscut in safe operating condition at the
following locations:
1. Between the numbers 62 and 63 shields. The outer jacket of the
hose was worn off for an area measuring 2 inches long by 3 inches
wide exposing the inner wire braiding to damage. The inner
braiding was rusted and deteriorating from oxidation and rubbing
on the pontoons of the shields when they were advanced.
2. Between the numbers 64 and 65 shields. The outer jacket of the
hose was worn off for an area measuring 24 inches long by 3
inches wide exposing the inner wire braiding to damage. Broken
strands were present. The inner braiding was rusted and
deteriorating from oxidation and rubbing on the pontoons of the
shields when they were advanced. The Operator immediately
removed the shields from service until the condition could be
corrected. Both outer protective hose sleeves were damaged at the
cited locations.

2

30 C.F.R. § 75.1725(a) provides that “[m]obile and stationary machinery and equipment
shall be maintained in safe operating condition and machinery or equipment in unsafe condition
shall be removed from service immediately.”

42 FMSHRC Page 253

Standard 75.1725(a) was cited 16 times in two years at mine
3607230 (16 to the operator, 0 to a contractor).
Ex. P–5. The citation was terminated on May 17, when both damaged high pressure hoses were
replaced. Ex. P–5. Consol has conceded the violation, but contests the S&S designation and the
degree of negligence ascribed to the violation. Resp’t Br. at 18.
B. Gravity
In Mathies Coal Co., the Commission set forth four criteria that the Secretary must
establish in order to prove that a violation is S&S under National Gypsum: 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. 6 FMSHRC 1, 3-4 (Jan. 1984); see also Buck Creek Coal,
Inc. v. FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Sec’y of Labor, 861
F.2d 99, 103-04 (5th Cir. 1988) (approving Mathies criteria), aff’g 9 FMSHRC 2015, 2021 (Dec.
1987). Resolution of whether a violation is S&S must be based “on the particular facts
surrounding that violation.” Texasgulf, Inc., 10 FMSHRC 498, 501 (Apr. 1988); Youghiogheny
& Ohio Coal Co., 9 FMSHRC 2007, 2011-12 (Dec. 1987).
The Commission has explained that the second Mathies criterion requires the judge to
define the hazard to which the violation contributes, and then determine “whether, based upon
the particular facts surrounding the violation, there exists a reasonable likelihood of the
occurrence of the hazard against which the mandatory safety standard is directed.” Newtown
Energy, Inc., 38 FMSHRC 2033, 2038 (Aug. 2016); see ICG Illinois, LLC, 38 FMSHRC 2473,
2475-76 (Oct. 2016). When evaluating the third Mathies criterion, the judge is to assume that
the hazard identified in step two has been realized, and then consider whether the hazard would
be reasonably likely to result in injury in the context of “continued normal mining operations.”
Newtown Energy, 38 FMSHRC at 2045 (citing Knox Creek Coal Corp., 811 F.3d 148, 161-62
(4th Cir. 2016); Peabody Midwest Mining, LLC, 762 F.3d 611, 616 (7th Cir. 2014); Buck Creek,
52 F.3d at 135)); U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). The Secretary
need not prove a reasonable likelihood that the violation, itself, will cause injury. Musser Eng’g,
Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010).
The Secretary maintains that the violation was S&S because the damaged hoses created a
risk of highly pressurized fluid leaks and, because the hoses were facing the pan line, they “could
break loose entirely and whip through the air” in an area where miners travel. Sec’y Br. at 6-7.
Additionally, the Secretary argues that the pressure tests on the damaged hoses offered by
Consol should be discounted because they do not account for continued degradation and repeated
pressurization during the normal course of mining. Sec’y Br. at 5-7. Consol makes the counter
argument that despite the damage, the pressure testing performed at Fairmont Supply Company
(“Fairmont”) demonstrated that the hoses could withstand pressure far exceeding that to which
they were subjected during normal mining. Resp’t Br. at 18-21. Consol also contends that if one
or both hoses were to fail, it would be highly unlikely for a miner to be in close proximity to

42 FMSHRC Page 254

either because of Consol’s automated system for moving the longwall shields. Resp’t Br. at 1920.
Inspector Young testified that he identified damaged high pressure hoses between the
numbers 62 and 63, and 64 and 65 shields, with braiding visible through the outer jackets and
oxidation on the exposed steel braiding. Tr. 273, 289, 299-300, 334. Young explained that the
hoses use hydraulic fluid to pressurize the shield system, and that the cited hoses carry 2,500 psi
of static pressure and approximately 5,000 psi of operating pressure when the shields are
advancing. Tr. 274-75, 293, 304. He noted that there was slack in the hoses, which caused
rubbing on the longwall pontoons. Tr. 292-93, 307. He testified that high pressure leaks at
4,000 psi can pierce human flesh and that if a “hose blows off” and swings, it could kill miners
traveling or working along the pan line. Tr. 299. Young explained that the longwall shields are
moved manually when there are bad roof conditions, and that miners can override the computer
program ensuring that they are two shields away from an advancing shield. Tr. 310-14, 321-323.
Additionally, Young acknowledged that, under some circumstances, oxidation can occur quickly,
that it usually turns steel a dark color, and that the outer jacket of the cited hoses is black.
Tr. 309, 334, 340. Finally, he stated that the only way to determine the extent of damage to a
hose is to send it out for testing, and that MSHA did not test the cited hoses. Tr. 308, 334.
Consol respirable dust coordinator John Opfar explained that the longwall operation is
supported by over 200 shields, each equipped with three hoses. Tr. 545-46, 591. He testified
that, typically, the longwall shields are advanced automatically, and that they only begin to
advance once the shearer has passed and is approximately 10 shields further along the working
face. Tr. 588-90. Additionally, he explained that when conditions require that shields be moved
manually, miners can only advance a shield using a computer program that operates two shields
away from the advancing shield; this keeps miners approximately 11 feet from the advancing
shield and the highly pressurized hoses. Tr. 588-90. Opfar acknowledged that when the
longwall shields advance, the hoses can pull and rub, and he identified the location of the
deterioration as facing the shields. Tr. 587.
Consol conference officer Robert Gross testified that the cited hoses carried
approximately 5,000 psi when pressurized to advance the longwall shields. Tr. 625, 642, 654,
666. He stated that Consol had the hoses proof and burst pressure tested at Fairmont’s facility.3
Tr. 633, 644-45. He also stated that both hoses passed the proof pressure test, that neither hose
burst, and that the burst test established that one could withstand 19,000 psi without leakage,
while the other began to leak at 17,000 psi. Tr. 645-47, 652-55. Finally, Gross explained that,
despite the damage to the outer jackets, both hoses had internal layers of intact braiding.
Tr. 649-50.
Todd Clyde, the distribution center manager at Fairmont, testified that the company
assembled and sold the cited hoses to Consol. Tr. 672-73, 685. He also stated that Consol had
3

Gross and Fairmont employee Todd Clyde explained that the proof pressure testing
procedure doubles the maximum pressure determined by the manufacturer for 30 seconds to
ensure that hoses are in safe operating condition; burst pressure testing pressurizes hoses to four
times the pressure that they would undergo during normal mining conditions. Tr. 643, 674.

42 FMSHRC Page 255

the hoses tested at Fairmont, and that the testing methods at its facility are accepted by hose
manufacturers. Tr. 672, 682.
The fact of violation has been conceded. Regarding the second Mathies criterion,
continued operation of the damaged hoses contributed to their failure, i.e., highly pressurized
fluid leakage and uncontrollable detachment from the shields.
The Secretary seeks to discredit Consol’s pressure testing, contending that it does not
take into account wear and tear from continued friction and pressure changes occurring during
the normal course of mining. Sec’y Br. at 6-7. The Commission has explained that, in
evaluating the contribution of a violation to the cause and effect of a hazard, “it is assumed that
normal mining operations will continue.” Mach Mining, LLC, 40 FMSHRC 1, 4 (Jan. 2018)
(citing U.S. Steel, 6 FMSHRC at 1574-75); see also U.S. Steel Mining Co., 7 FMSHRC 1125,
1130 (Aug. 1985). Accordingly, continued stress on the hoses and highly pressurized fluid
leakage must be considered when evaluating the risk of hose failure, alongside evidence of their
condition at the time that they were cited by Young. While the record establishes that many
layers of braiding remained intact and that the hoses could withstand pressure far greater than
that utilized to move the shields, continued operations subjected them to rubbing the pontoons as
the longwall advanced. While the test results indicated the unlikelihood of the hoses failing at
the time that Young observed the damage, given the extent of exposed braiding and oxidation,
along with wear and tear in the context of continued mining, I find it reasonably likely that these
hoses would fail. Accordingly, the second step of Mathies is met.
Regarding the third step of Mathies, Consol argues that miners would not have been
exposed to the hazard arising from the damaged hoses. The record indicates that shield hoses are
only pressurized to 5,000 psi when the longwall advances and, under normal circumstances,
automated longwall advances do not require miners to be located in the immediate area.
However, under adverse roof conditions, when Consol elects to advance the longwall manually,
it utilizes a computer program that precludes advancement unless miners are 11 feet away from
the pressurized hoses that are advancing the shield. Other than the Secretary’s bare contention
that miners can override the manual system, the Secretary does not rebut or reckon with this
evidence in any meaningful way. Moreover, the Secretary has not identified any scenario in
which a miner would be exposed to the hazard created by the failed highly pressurized hoses.
Accordingly, the Secretary has failed to establish a reasonable likelihood of injury and, therefore,
this violation was not S&S.4

4

The Secretary’s cite to Mountain Coal, in support of his contention that the violation
was reasonably likely to result in an injury, cuts the other way. See Sec’y Br. at 5-7 (citing
Mountain Coal Co., LLC, 31 FMSHRC 1220, 1238 (Oct. 2009) (ALJ) (the judge’s non-S&S
finding was based, in part, on the cited hoses being located behind the shields where miners did
not regularly travel)). Similarly, the non-S&S finding in this matter is premised upon the
Secretary’s failure to place miners in close proximity to the pressurized hoses under either
computer program, automated or manual.

42 FMSHRC Page 256

C. Negligence
The Secretary contends that Consol was moderately negligent in committing the
violation. Sec’y Br. at 7. Consol argues that its negligence should be low because there were
hundreds of hoses used to operate the longwall, and the condition was difficult to identify.
Resp’t Br. at 21. The evidence establishes that the damage was on the non-visible back side of
the hoses facing the shields, and that the oxidation on the inner steel braiding and the hoses’
outer jackets were similar in color; therefore, their cited condition was not readily observable
from the travelway. Additionally, only two out of approximately 600 hoses were cited. Finally,
the Secretary did not establish how long the condition had existed. I find these factors mitigating
and, accordingly, that Consol’s negligence was low in violating this standard.
2.

Citation No. 9077364
A. Fact of Violation

Inspector Young issued 104(a) Citation No. 9077364 on May 17, 2018, alleging an
“S&S” violation of section 75.400 that was “reasonably likely” to cause an injury that could
reasonably be expected to result in “lost workdays or restricted duty,” and was caused by
Consol’s “moderate” negligence.5 The “Condition or Practice” is described as follows:
Damp to wet accumulations of combustible materials consisting of
loose coal, coal fines and coal dust, black in color, were permitted
to accumulate under the rear of the 6-J Working Section Conveyor
Belt Storage Unit and 0.5 crosscut. These accumulations measured
13 feet long by 6 feet wide by 2 to mostly 12 inches in depth.
These accumulations were in contact with the return side of the
bottom conveyor belt and the stationary roller (outby roller).
These accumulations were packed and worn smooth from the
conveyor belt being operated overtop of them. The accumulations
were built up to the point were [sic] the conveyor belt was almost
rubbing the tight side of the take-ups [sic] frame.
The Operator removed the Conveyor Belt from service
immediately after the issuance of this citation until the condition
could be corrected.

5

30 CFR § 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.”

42 FMSHRC Page 257

Standard 75.400 was cited 109 times in two years at mine 3607230
(109 to the operator, 0 to a contactor).
Ex. P–6. The citation was terminated on May 17, after the operator removed the accumulations
from the area. Ex. P–6. Consol has conceded the violation, but contests the S&S designation
and the degree of negligence ascribed to the violation. Resp’t Br. at 22.
B. Gravity
The Secretary argues that the citation was S&S, and that the hazard is a “mine fire from
the combination of heat from the belt and combustible coal.” Sec’y Br. at 8. Consol maintains
that an ignition was unlikely to occur because of the wet conditions in the area, the mixed nature
of the accumulations, and the presence of water sprays, an overhead fire suppression system, a
CO monitor, a fire resistant belt, and a nearby attendant. Resp’t Br. at 22-23.
Inspector Young testified that he observed accumulations underneath the 6-J working
section conveyor belt storage unit that extended 6 feet in width, 2 to 12 inches in depth, and 12
feet in length. Tr. 347. He stated that the accumulations were in contact with the belt and rollers
in several places, noting that multiple rollers were under pressure, that accumulations were
underneath the take-up structure, and that the belt had polished the accumulations. Tr. 347, 353,
374. He also noted that none of the rollers were damaged, and that the belt was not in contact
with the take-up structure. Tr. 347, 353, 373-74. Young testified that he observed chunks of
coal within the wet mixture of dirt, rocks, and other debris, and that the accumulations were not
rock dusted. Tr. 347, 350, 364-65, 385. In his opinion, the quantity indicated that the
accumulations had existed for two to three shifts, and that it would have taken time for the belt to
have polished them. Tr. 347, 351-52. He noted that the outside guarding was clean, which he
believed to be another indication that a spill had not occurred recently. Tr. 393-94. In Young’s
opinion, continued mining operations could dry out the accumulations and cause a fire, and the
accumulations had almost built up enough to cause the belt to rub against the frame of the takeup structure. Tr. 350-51, 374-75. Finally, Young explained that the mine was subject to a fiveday spot inspection cycle for methane, and that he did not cite Consol for elevated levels of
methane that day. Tr. 58-59, 258.
Consol respirable dust coordinator John Opfar testified that the belt was in contact with
the accumulations, that the belt was functioning at least intermittently at the time that the
accumulations were cited, and that there was coal in the accumulations. Tr. 561-62, 564-65. He
explained that spillage can occur when the belt is turned off and on. Tr. 564. He noted that the
accumulations were wet and contained a mixture of materials. Tr. 561. He also testified about
the fire prevention equipment employed by the mine, which includes an overhead fire
suppression system, a CO monitor, fire resistant belts, and sprinklers. Tr. 553-54, 561-67. Opfar
also noted that an attendant was stationed near the accumulations, and that he could have
addressed any smoldering or fire. Tr. 561-62, 565-567.
The fact of violation has been conceded. Regarding the second Mathies criterion, the
discrete safety hazard against which section 75.400 is directed is fire or explosion contributed to
by accumulations of combustible materials.

42 FMSHRC Page 258

In cases involving combustible accumulations, the Commission has clarified that when
considering the second and third steps of the Mathies analysis, “the likelihood of an injury
resulting depends on the existence of a ‘confluence of factors’ that could trigger the ignition or
explosion.” Mach Mining, 40 FMSHRC at 3-4 (citing McCoy Elkhorn Coal Corp., 36 FMSHRC
1987, 1992 (Aug. 2014)). “Factors include any potential ignition sources, the presence or
potential for presence of methane, float coal dust accumulations, loose coal or other ignitable
substance, and the types of equipment operating in the area.” Id. at 4; see also Utah Power &
Light Co., Mining Div., 12 FMSHRC 965, 971 (May 1990); Texasgulf, 10 FMSHRC at 501-03.
Belt rollers contacting accumulations can be potential ignition sources even if the belt is not
rubbing against any structure and there are no broken rollers. See id. at 4-6; see also Knox Creek
Coal Corp., 36 FMSHRC 1128, 1139-42 (May 2014). Additionally, equipment operating in coal
accumulations constitutes an ignition source for S&S purposes, even absent any defects in the
equipment. See Buck Creek, 52 F.3d at 135. Finally, it is well established that a fire in an
underground coal mine poses a significant risk of injury to miners. Id. at 135-36; Black
Diamond Coal Mining Co., 7 FMSHRC 1117, 1120 (Aug. 1985).
Consol argues that the wetness of the accumulations made it unlikely for a fire to occur.
Resp’t Br. at 22-23. However, the Commission has long explained that “wet coal accumulations
pose a significant danger in underground coal mines” because they can dry out through frictional
contact with the belt or rollers, and propagate a fire or explosion. Mach Mining, 40 FMSHRC at
4-6 (citing Consolidation Coal Co., 35 FMSHRC 2326, 2329-30 (Aug. 2013); Black Diamond, 7
FMSHRC at 1120-21).
Consol next contends that the presence of an overhead fire suppression system, a CO
monitor, sprinklers, and fire resistant belts reduce the likelihood of the hazard causing an injury.
Resp’t Br. at 22-23. However, it is well settled that these safety measures are not valid
considerations in determining whether a violation is S&S. Buck Creek, 52 F.3d at 135-36 (the
court rejected the operator's contention that other fire prevention safety measures mitigated the
S&S nature of an accumulation); see also Sec’y of Labor v. Consolidation Coal Co., 895 F.3d
113, 118 (D.C. Cir. 2018); Knox Creek, 811 F.3d at 162; Cumberland Coal Res., LP, 717 F.3d
1020, 1028-29 (D.C. Cir. 2013), aff’g 33 FMSHRC 2357 (Oct. 2011); Brody Mining, LLC, 37
FMSHRC 1687, 1691 (Aug. 2015). Furthermore, as the Commission has recognized, adopting
the position that redundant safety measures provide a defense to an S&S finding “would lead to
the anomalous result that every protection would have to be nonfunctional before a[n] S&S
finding could be made.” Cumberland Coal Res., LP, 33 FMSHRC 2357, 2369 (Oct. 2011).
Consol also maintains that a fire was unlikely because the accumulations were a mixture
of combustible and noncombustible materials. Resp’t Br. at 22. On this point, I credit Young’s
testimony, based on his experience and observation of the coal in the accumulations, that there
was sufficient coal to provide a fuel source.
Finally, Consol advances the argument that the nearby attendant could prevent an ignition
from occurring or clean up any accumulations. Resp’t Reply Br. at 5. However, the
Commission requires that an S&S determination be made at the time that a citation is issued,
“without any assumptions as to abatement,” and in the context of “continued normal mining
operations.” Paramont Coal Co., 37 FMSHRC 981, 985 (May 2015); U.S. Steel, 6 FMSHRC at

42 FMSHRC Page 259

1574. In the present case, the evidence establishes that the accumulations had accrued over a
few shifts because of the quantity, that they had been polished by the belt, and that there was no
spillage on the guarding; in that timespan, no one, including the attendant, had addressed them.
It follows, therefore, that the attendant had no effect on the likelihood of a fire or explosion
occurring.
The cases cited by Consol in support of a non-S&S designation are premised upon facts
that are distinguishable from the facts at hand. See Resp’t Br. at 22-23. In Brody Mining, LLC,
the judge found a non-S&S violation where the accumulations were loose and not compacted,
they were wet with water rather than hydraulic oil, there was no evidence of heat coming from
the belt, and redundant safety measures made ignition unlikely. 33 FMSHRC 1329, 1382, 138485 (May 2011) (ALJ). Here, the accumulations were packed and polished by the belt to the point
that they had become smooth, indicating that there had been significant contact and friction with
the belt. In Mach Mining, LLC, the judge found that the accumulations could have accrued in a
relatively short time, that approximately half of the material was noncombustible rock, and that
the roller contacting the accumulations was no longer in use. 33 FMSHRC 763, 773 (Mar. 2011)
(ALJ).6 In this case, by contrast, the cited accumulations were present significantly longer than a
shift, the mixture was black and contained chunks of coal, and the accumulations were in contact
with functioning rollers.
The evidence establishes that there were numerous points of contact between the
accumulations and the belt, and there were multiple rollers under pressure, all of which created
points of friction.7 Moreover, there were chunks of coal in the accumulations, and the belt had
polished them. Furthermore, despite no evidence of excessive methane levels on the section at
the time that Young cited the accumulations, the fact that Bailey is subject to a five-day spot
inspection cycle for methane heightened the potential for an ignition in the context of continued
normal mining.8 Finally, at least one miner, the attendant, would have been in close proximity to
a fire. Based on these facts, I find that the coal accumulations contributed to the reasonable
likelihood of a fire, a hazard that would be reasonably likely to result in an injury. Accordingly,
the second and third Mathies criteria have been satisfied.
As the Seventh Circuit expressed in Buck Creek, a finding that “a fire burning in an
underground coal mine would present a serious risk of smoke and gas inhalation” is a common
sense conclusion. 52 F.3d at 135-36; see also Black Diamond, 7 FMSHRC at 1120 (recognizing
6

In both cases, the judges’ reliance on redundant safety measures was misplaced and, to
the extent that their non-S&S findings were based on the wetness of the accumulations, such
reasoning has been rejected by the Commission. See Cumberland Coal, 717 F.3d at 1028-29;
Mach Mining, 40 FMSHRC at 4.
7

I also note that, had this condition continued unabated, there was a heightened
likelihood of the belt coming into contact with the take-up structure, creating another source of
friction and increasing the potential for an ignition.
8

The Commission has recognized that methane liberation can compound the likelihood
of ignition in accumulation cases. Mach Mining, 40 FMSHRC at 4.

42 FMSHRC Page 260

that “ignitions and explosions are major causes of death and injury to miners”). Based on the
facts in this case and the relevant precedent, I find a reasonable likelihood that any injury arising
from a mine fire would be of a reasonably serious nature, satisfying the fourth Mathies criterion.
Accordingly, I find that this violation was S&S.
C. Negligence
The Secretary asserts that Consol was moderately negligent in committing the violation
because the accumulations were not caused by spillage, and had been building up for two to
three shifts. Sec’y Br. at 8. Consol argues that its negligence should be low because the
accumulations were hard to identify, they could have accrued between examinations, and they
could have been caused by the belt being turned off and on. Resp’t Br. at 23. The evidence
establishes that the accumulations had existed for at least two shifts and had not been caused by a
sudden event, and that no action had been taken to remove them. Based on these facts, I find that
Consol was moderately negligent in violating the standard.
3.

Citation No. 9077374
A. Fact of Violation

Inspector Young issued 104(a) Citation No. 9077374 on June 28, 2018, alleging an
“S&S” violation of section 75.340(a)(1)(i) that was “reasonably likely” to cause an injury that
could reasonably be expected to result in “lost workdays or restricted duty,” and was caused by
Consol’s “moderate” negligence.9 The “Condition or Practice” is described as follows:
The battery scoop charging station located in the 5-L Longwall
Working Section (008-0 MMU) between the numbers 1 and 2
entries at the number 3 crosscut was ventilated with intake air that
was not coursed into a return air course or to the surface and was
being used to ventilate working places. When smoked with a
chemical smoke tube the air being used to ventilate the scoop
batteries was being coursed inby to the 5-L Longwall Working
Section’s last open crosscut (4 crosscut). This smoke tube reading
was taken at the track entry side of the battery being charged, 18
feet inby the ribline of the track entry (number 2 entry).
Standard 75.340(a)(1)(i) was cited 11 times in two years at mine
3607230 (11 to the operator, 0 to a contractor).
Ex. P–2. The citation was terminated on June 28, when the ventilation was corrected by hanging
a piece of line brattice across the opening to the crosscut and enlarging the hole in the stopping.
9

30 C.F.R. § 75.340(a)(1)(i) provides, in relevant part that “battery charging stations . . .
shall be housed in noncombustible structures . . . . When a noncombustible structure or area is
used, these installations shall be . . . [v]entilated with intake air that is coursed into a return air
course or to the surface and that is not used to ventilate working places.”

42 FMSHRC Page 261

Ex. P–2. Consol has conceded the violation, but contests the S&S designation, the number of
persons affected, and the degree of negligence ascribed to the violation. Resp’t Br. at 7, 23.
B. Gravity
The Secretary contends that this violation was S&S because the improper ventilation
would expose miners to toxic fumes and smoke from the battery charging station, and urges the
assumption of an emergency, i.e., a battery fire, in the Mathies analysis. Sec’y Br. at 9-10 (citing
Cumberland Coal, 717 F.3d at 1028-29). Alternatively, the Secretary asserts that, even if a fire
were not assumed, the conditions in the mine on the day in question would render the ventilation
dangerous to miners. Sec’y Br. at 10.
Consol maintains that it would be inappropriate to assume an emergency in the Mathies
analysis because section 75.340(a)(1)(i) is not an emergency standard. Resp’t Reply Br. at 5-6
(citing Cumberland Coal, 717 F.3d at 1028-29; ICG Illinois, 38 FMSHRC at 2473). Moreover,
Consol contends that determining whether a fire was likely to occur is an essential part of the
S&S analysis and that, given the good condition of the cited battery, a fire was unlikely.
Resp’t Br. at 7-9. Additionally, Consol explains that, even if a fire were to occur, miners’
exposure would be limited because intake air coming from the primary escapeway would dilute
any smoke or contamination coming from the No. 2 track entry before it reached the working
face. Resp’t Br. at 8, 23-24.
Inspector Young testified that he encountered a noticeable increase in temperature near
the No. 3 crosscut, and found that the heat was coming from a battery charging in the crosscut
and the connected charger. Tr. 60-61, 70-71. He testified that the battery was located near the
stopping in the crosscut, that there was no ventilation curtain at the charging station, and that
there was a disconnected charger also sitting in the crosscut. Tr. 60-61, 64, 82-83, 90, 94, 130.
The battery in the No. 3 crosscut was connected to a charger mounted on the train in the No. 2
track entry, and Young explained that MSHA does not cite chargers that are mounted on trains.
Tr. 65, 70, 91-92. He opined that charging batteries are dangerous because if they catch fire,
they can create toxic smoke and carbon monoxide. Tr. 64, 141. Young stated that he released
multiple smoke tubes 13, 15, and 18 feet from the ribline of the track entry to determine whether
the area was properly ventilated. Tr. 63-64, 68, 125, 127. He explained that when he took a
smoke test at the 18 foot mark at the front edge of the battery, some smoke went through the
stopping in the crosscut to the return belt entry and some went toward the ribline, continuing up
the track entry toward the face. Tr. 116, 122, 124-25, 127, 130. When he released smoke at the
15 foot mark, he observed the smoke swirling; at the 13 foot mark, he observed the smoke
traveling toward the face. Tr. 127. Young then explained that, in the event of contamination
coming from the battery, once intake air from the No. 1 primary escapeway met the
contaminated air in the No. 2 track entry, some of the combined air would be siphoned off at the
last open crosscut into the return belt entry, but there would be no way to quantify the amount of
contamination ventilating the face. Tr. 76, 80-81, 116. He noted that in assessing the gravity of
the violation, he took into account other ventilation in the mine and the potential for dilution of
any contaminated air, and he acknowledged that Consol employs a fire suppression system, CO
monitors, and a fire resistant curtain over the battery. Tr. 117-18, 131, 154.

42 FMSHRC Page 262

Consol safety inspector Justin Jones testified that he observed Young perform the smoke
test over the battery, and that the smoke remained stagnant; however, he also stated that the
smoke split and some traveled toward the face when Young performed smoke tests closer to the
ribline. Tr. 417-19, 430. He explained that any air traveling toward the face would get diluted
by intake air coming from the primary escapeway, that some of the contaminated air would get
siphoned off, and that there was no damage to the charger or the battery at the time of inspection.
Tr. 418, 422-23, 425. Finally, he noted that miners are equipped with self-contained self-rescue
devices (“SCSR”), and that Consol utilizes fire suppression systems, CO monitors, and a fire
resistant curtain over the battery. Tr. 418-19.
The fact of violation has been conceded. Regarding the second Mathies criterion, the
discrete safety hazard that section 75.340(a)(1)(i) is intended to prevent is “delivery of smoke or
other products of combustion to the working place by the intake air current.” 57 Fed. Reg.
20868-01, 20888 (May 15, 1992).
Addressing the Secretary’s position as to the second Mathies criterion, the Commission
and the D.C. Circuit have applied Cumberland Coal to standards that only become relevant in
emergency situations, such as lifelines, escapeways, and refuge chambers. See e.g., Cumberland
Coal, 717 F.3d at 1026-28; ICG Illinois, 38 FMSHRC at 2476; Small Mine Dev., 37 FMSHRC
1892, 1900-01 (Sept. 2015); Black Beauty Coal Co., 36 FMSHRC 1121, 1123 (May 2014);
Spartan Mining Co., 35 FMSHRC 3505, 3508-09 (Dec. 2013). The standard at issue, section
75.340(a)(1)(i), is not within the ambit of the situations that would render it an emergency
standard. Therefore, at this juncture, the particular facts attendant this violation are analyzed to
determine the reasonable likelihood of smoke and other products of combustion reaching the
working face, irrespective of any emergency.
In support of its contention that the charging battery posed no risk of fire because it was
not found to be defective, Consol cites several cases for the proposition that the S&S designation
is primarily premised upon the likelihood of a battery fire occurring. Resp’t Br. at 8 (citing
Rebco Coal, Inc., 36 FMSHRC 181, 186 (Jan. 2014) (ALJ); Roxcoal, Inc., 33 FMSHRC 2303,
2313 (Sept. 2011) (ALJ); Zeigler Coal Co., 14 FMSHRC 203, 219 (Jan. 1992) (ALJ); Mathies
Coal Co., 4 FMSHRC 2222, 2234-35 (Dec. 1982) (ALJ)). These cases, involving similar
violations but different facts, are of limited value. In Roxcoal, in finding that a battery fire was
unlikely and that the violation was non-S&S, the judge noted that any contaminated air in the
travelway would be coursed quickly to the return. 33 FMSHRC at 2313. There is no such
indication in the present case. In Zeigler Coal and Rebco Coal, the inspectors did not designate
the violations S&S, and the judges did not make findings on S&S. See 14 FMSHRC at 219; 36
FMSHRC at 186. In Mathies Coal, the cited battery charging equipment was not in use, whereas
here, the battery was being charged. See 4 FMSHRC at 2234-35.
Additionally, MSHA has explained that section 75.340 requirements are designed “to
protect miners if a fire originates at underground transformer stations, battery charging stations,
substations, rectifiers and water pumps.” 57 Fed. Reg. at 20888 (emphasis added). MSHA has
also explained that the requirements are “necessary to safely operate [battery] chargers,
regardless of the location” because charging batteries liberate hydrogen, and “[t]here is a

42 FMSHRC Page 263

demonstrated history of fires caused by battery chargers.” 61 Fed. Reg. 9764-01, 9786 (Mar. 11,
1996).10
In the present case, the evidence establishes that the air at the charging battery in the No.
3 crosscut split, some ventilating through the stopping into the return belt entry, and some
migrating inby the track entry and mixing with intake air from the primary escapeway before
coursing the working face. Accordingly, the second Mathies requirement has been satisfied.
Regarding the third Mathies criterion, Consol’s contention, that its overhead fire
suppression system, CO monitors, fire resistant curtain, and SCSRs for its miners would reduce
the likelihood of injury, is clearly contrary to long held precedent. The Commission and Federal
Courts of Appeals have explained that redundant safety measures are not valid considerations in
determining whether an injury is reasonably likely to occur. See e.g., Knox Creek, 811 F.3d at
162; Cumberland Coal, 717 F.3d at 1029; Brody Mining, 37 FMSHRC at 1691.
While the evidence establishes that contaminated air originating in the No. 3 crosscut and
traveling inby the track entry was diluted by intake air from the primary escapeway, and that
some of the combined air was siphoned off at the last open crosscut and ventilated into the return
belt entry, an unknown quantity of residual contaminants reached the working face and, in the
event of a fire at the charging battery, smoke and other products of combustion would be
reasonably likely to reach the entire crew, resulting in serious respiratory and other injuries.
Accordingly, I find that the third and fourth Mathies criteria have been satisfied, and that this
violation was S&S.
C. Negligence
The Secretary contends that Consol was moderately negligent in violating the standard
because the heat emanating from the battery and charger was obvious. Sec’y Br. at 10. Consol
argues that its negligence was low because there were no defects found on the battery or the
charger, and the Secretary did not establish how long the condition had existed. Resp’t Br. at 11.
The evidence establishes that the charging battery and charger were generating noticeable heat.
Additionally, the hole in the stopping was insufficient for adequate ventilation of the charging
battery into the return belt entry, and there was no other ventilation control at that location.
Based on these facts, I find that the Consol was moderately negligent in violating the standard.
4.

Citation No. 9077375
A. Fact of Violation

Inspector Young issued 104(a) Citation No. 9077375 on June 28, 2018, alleging an
“S&S” violation of section 75.512 that was “reasonably likely” to cause an injury that could
10

Consol acknowledges that charging batteries liberate hydrogen. Resp’t Reply Br. at 6
(citing Lion Mining Co., 16 FMSHRC 921, 923-24 (Apr. 1994) (ALJ); Nats Creek Mining Co.,
17 FMSHRC 115, 129-30 (Feb. 1995) (ALJ); Bethenergy Mines, Inc., 11 FMSHRC 1999, 200206 (Oct. 1989) (ALJ)).

42 FMSHRC Page 264

reasonably be expected to be “fatal,” and was caused by Consol’s “moderate” negligence.11 The
“Condition or Practice” is described as follows:
The energized 480 A.C. Volt control panel containing the VFD#1
and VBD#2 breakers on the ISE Pump Car located in the number 2
entry, just outby 3 crosscut, in the 5-L Longwall Working Section
(008-0 MMU) was not frequently examined, tested, and properly
maintained by a qualified person to assure safe operating
condition. When inspected the outby door was not closed and after
further investigation neither of the breaker control levers on the
outside of this panel were not [sic] operational. The metal
extensions that fit between the actual machine breaker and the
exterior breaker control reset handles were not connected. Due to
this condition, a person would have to reset these breakers
manually by inserting the bare metal square stock and using a tool
to turn/reset the breakers, exposing them to contacting the
energized components inside the control box.
Ex. P–3. The citation was terminated on June 28, after the breaker control levers were properly
reinstalled and the control panel door was closed securely. Ex. P–3. Consol has conceded the
violation, but contests the S&S designation and the reasonably expected injury, and the degree of
negligence ascribed to the violation. Resp’t Br. at 12, 24.
B. Gravity
The Secretary maintains that the violation was S&S because the open door on the ISE
pump circuit breaker (“ISE box”) exposed miners to 480 volts of electricity as they passed
through the area. Sec’y Br. at 10. Furthermore, the Secretary contends that miners and
electricians could have been electrocuted if they had attempted troubleshooting at the ISE box.
Sec’y Br. at 10-12.
Consol argues that the alleged hazard was not reasonably likely to occur because miners
did not travel on the tight side of the track entry where the ISE box was accessed. Resp’t Br. at
12. Additionally, Consol contends that unqualified miners would be unlikely to operate the
breakers because such behavior is contrary to their training, mechanics and electricians are
on-site to perform electrical tasks, the conditions requiring resetting the breakers were not
present at the time in question and, were de-energizing the panel necessary, qualified miners
could do so at the load center rather than the control panel. Resp’t Br. at 14-15. Finally, Consol
maintains that the reasonably expected injury should be reduced from “fatal” to “lost workdays
or restricted duty” because only electricians wearing protective gloves would be expected to
encounter the hazard while troubleshooting, the power could be turned off prior to
11

30 C.F.R. § 75.512 provides, in relevant part, that “[a]ll electric equipment shall be
frequently examined, tested, and properly maintained by a qualified person to assure safe
operating conditions. When a potentially dangerous condition is found on electric equipment,
such equipment shall be removed from service until such condition is corrected.”

42 FMSHRC Page 265

troubleshooting, and the Secretary “failed to produce any evidence demonstrating the
relationship between volts and amps[,] and the number of amps required to make 480 volts
lethal.” Resp’t Br. at 24-25.
Inspector Young testified that he observed the outby door open approximately three
inches on the ISE box, and that the breaker control levers were disconnected; he found one of the
control lever connector rods lying on the bottom of the box, six inches from the energized
components, and the other lying a couple of feet away from the ISE box in another car. Tr. 16667, 174, 190-91, 194. He opined that vibrations from the pump could have opened the door, but
that at least one of the disconnected control rods had been removed intentionally. Tr. 204-05.
He explained that contact with the live components would cause fatal injuries because the ISE
box is energized by 480 volts of electricity from the load center, which is used, in part, to power
the ISE pump, that the pump was most likely plugged into a 600 or 800 amp breaker inside the
box, and that contacting even 480 volts at half an amp would be fatal. Tr. 168-69, 185-86, 20102. Young asserted that the ISE box was in a “high traffic area,” that miners traveled on both
sides of the equipment, and that they could accidentally contact the live control panel by
tripping. Tr. 167-68, 188, 192. According to him, despite miner training and availability of
qualified mechanics and electricians, unqualified miners could have attempted troubleshooting at
the box which, without the control rods, would expose them to the energized components.
Tr. 167-68, 173-74, 183, 194-95, 197-203. He also acknowledged that only electricians, wearing
protective gloves, are permitted to troubleshoot at the ISE box when energized, that the power to
the box could have been shut down at the load center, and that there were no conditions on the
day in question that required resetting the breakers. Tr. 167-69, 175, 194-96.
Consol safety inspector Justin Jones testified that one of the control panel doors was open
only a few inches, and that miners do not travel on the tight side of the track entry where the ISE
box was located because the hydraulic lines running along that side make travel “inconvenient.”
Tr. 469, 473-74, 483-84. However, he testified that even if a miner were to fall where the box
was located, it would likely close the door to the box. Tr. 483. Jones explained that in the event
that the breakers required resetting, a mechanic or electrician with protective gear could access
the ISE box control panel or turn off the power to the box at the load center for the longwall
train, and that miners are trained not to troubleshoot electrical equipment. Tr. 474, 477, 490-92.
The fact of violation has been conceded. Regarding the second Mathies criterion, the
discrete safety hazard against which section 75.512 is directed is serious electric shock or
electrocution.
The cases relied upon by the Secretary to establish that the violation was S&S are
distinguishable. In Big Ridge, the judge affirmed an S&S finding where a 480-volt power cable
was damaged in three places, and there was substantial evidence that miners were active in the
area. See Sec’y Br. at 12 (citing Big Ridge, Inc., 36 FMSHRC 999, 1021-24 (Apr. 2014) (ALJ)).
In the instant matter, by contrast, the door on the ISE box was open three inches at best, and the
box was located in an infrequently traveled area, significantly reducing the likelihood of
accidental contact with the energized components. In McElroy Coal, the judge affirmed an S&S
finding where a power center could have electrocuted miners not in direct contact with the live
components, because the electricity could “track” to objects, such as steel-toed boots, in close

42 FMSHRC Page 266

proximity to the exposed power source, and there was evidence that clothing, lunch pails, and
other items were stored on top of the power center. See Sec’y Br. at 12 (citing McElroy Coal
Corp., 30 FMSHRC 45, 57-58 (Jan. 2008) (ALJ)). Here, the evidence indicates that the danger
was confined to the energized components inside the ISE box.
Consol cites to Zapata Coal, in which the judge found a non-S&S violation where covers
on three electrified 480-volt breaker boxes were open two to three inches and not properly
secured, because exposure to the hazard was minimal and injury was unlikely. See Resp’t Br. at
12 (citing Zapata Coal Corp., 6 FMSHRC 2639, 2646-47 (Nov. 1984) (ALJ)). This case
presents similar facts. It is uncontested that one of the doors accessing the energized control
panel inside the ISE box was open a few inches, that the box was located on the tight side of the
track, and that travel on that side was inconvenient. The Secretary has failed to establish that
unqualified miners would be traveling the tight side with any frequency, or that they would reset
the breakers in the box. Moreover, the Secretary has not rebutted evidence that qualified
mechanics and electricians troubleshoot electrical equipment, or that qualified miners could shut
down power to the ISE box at the load center. Consequently, I find that accidental contact with
the energized components was unlikely. Therefore, the Secretary has failed to establish the
second Mathies criterion, and this violation was not S&S.
Regarding the injury that would reasonably be expected, Consol contends that by failing
to demonstrate the relationship between voltage and amperage, the Secretary has not established
that 480 volts of electricity would be lethal. Consol does not challenge that the ISE box was
energized with 480 volts from the load center, or that the power for the ISE pump ran through
the box. Furthermore, Consol does not rebut that, in all likelihood, the pump was connected to a
600 or 800 amp breaker, or that contacting 480 volts at even half an amp would be fatal.
Consequently, the only evidence on this point stands. Therefore, in the unlikely event that an
unqualified miner were to contact the energized components, the reasonably expected injury
would be fatal.
C. Negligence
The Secretary argues that Consol was moderately negligent in committing the violation
because weekly examinations were required, the condition was obvious, and the state of the
control rods indicated improper handling of the equipment. Sec’y Br. at 12. Consol contends
that low negligence is appropriate because the latches on the door could have come loose
inadvertently, the box was located in a non-obvious location, there was no evidence that the door
was open at the time of the last examination and it was not reported, and Consol was not cited for
an inadequate examination. Resp’t Br. at 15. Balancing the evidence that the door was only ajar
rather than wide open, and that the condition was not readily observable and of unknown
duration, against the evidence of equipment mishandling indicated by one of the disconnected
breaker control levers being found in another car, I find that Consol was moderately negligent in
violating the standard.

42 FMSHRC Page 267

5.

Citation No. 9077376
A. Fact of Violation

Inspector Young issued 104(a) Citation No. 9077376 on June 28, 2018, alleging an
“S&S” violation of section 75.202(a) that was “reasonably likely” to cause an injury that could
reasonably be expected to result in “lost workdays or restricted duty,” and was caused by
Consol’s “moderate” negligence.12 The “Condition or Practice” is described as follows:
The mine roof in areas where persons work or travel was not
adequately supported or otherwise controlled to protect persons
from hazards related to falls of the mine roof, between the last
tailgate shield (#273 at spad number 11+11) and the 5-L Tailgate
Travel way on the 5-L Longwall Working Section. The
unsupported area measured 5.5 feet wide by 18.5 feet long and
would not allow face personnel to safely access the tailgate
travelway in the event of an emergency.
Standard 75.202(a) was cited 13 times in two years at mine
3607230 (13 to the operator, 0 to a contractor).
Ex. P–4. The citation was terminated on June 28, after the mine roof was supported with posts,
making the tailgate safely accessible. Ex. P–4. Consol has conceded the violation, but contests
the S&S designation and the degree of negligence ascribed to the violation. Resp’t Br. at 15-17.
B. Gravity
The Secretary, arguing that the violation was “almost per se” reasonably likely to cause
an injury, contends that the violation was S&S because “there were signs of pressure in the roof
and actual material falling off the roof.” Sec’y Br. at 12-13. He contends that the foreman
would be exposed to the hazard because he is required to pass through the cited area to take air
readings every four hours. Sec’y Br. at 12-13. The Secretary also asserts that some miners
might travel to the face through the tailgate, and that an emergency might force the entire crew to
evacuate through the tailgate. Sec’y Br. at 12-13. On the other hand, Consol argues that it
would be unlikely for a miner to be in the cited area at the precise time of a rock fall and that,
outside of emergency situations, only a foreman would travel in the area. Resp’t Br. at 16-17.
Inspector Young testified that the area of unsupported roof was roughly 5.5 feet wide and
18.5 feet long between the end of the longwall and the tailgate, and that the condition likely
arose from the longwall getting “off sights.” Tr. 212-13, 234. He stated that he observed
unconsolidated pieces hanging and large chunks of material falling from the roof in that area.
Tr. 210. Young opined that miners could travel through the cited area to reach the working face,
12

30 C.F.R. § 75.202(a) provides 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, face or ribs and coal or rock bursts.”

42 FMSHRC Page 268

or could be required to escape through the tailgate in an emergency. Tr. 215-16, 257. He
explained that because the mine has two escapeways located on the headgate side, the mine is
required to maintain a passable travelway to the tailgate and that, under normal conditions, the
section foreman would cross from the longwall into the tailgate to take air readings. Tr. 235,
259-61. He also testified that it takes two hours for the longwall to complete a round trip, and he
was of the opinion that whether the longwall advancing would terminate the condition is
speculative; he admitted, however, that the cited condition can arise unexpectedly, and come and
go as longwalls advance. Tr. 246, 249, 253-54, 256.
Consol safety inspector Justin Jones testified that the foreman would take an air reading
in the area between the end of the longwall and the tailgate every four hours. Tr. 406, 514-15.
He explained that the advancing longwall would have resolved the roof condition within the hour
because, when the longwall shearer completed its next pass, it would have “knocked out” the
cited area and the shields would have advanced. Tr. 515. He testified that under normal
circumstances, miners would not travel to and from the longwall face through the tailgate, but
acknowledged that in the case of an emergency, escape through the tailgate might be necessary.
Tr. 514, 520. He noted that there had not been an emergency requiring usage of the tailgate as an
escapeway during his six years working at the mine. Tr. 520. In his opinion, the roof appeared
“in fine condition to pass under.” Tr. 530. Additionally, he noted that miners had been setting
posts in the tailgate earlier in the shift. Tr. 510-11; Ex. R–20.
The fact of violation has been conceded. Considering the second step of Mathies, the
roof was unsupported and fairly large chunks were already falling when the inspector came upon
the area. The discrete safety hazard contemplated by this standard is roof falls in areas where
persons work or travel. Accordingly, the second Mathies step is met.
Consol identifies cases in which judges made non-S&S findings based upon
considerations of the likelihood of hazards occurring, i.e., roof falls, in conjunction with the
unlikelihood of miners being at those precise locations when the hazards occurred, in concluding
that injuries were unlikely. Resp’t Br. at 16; Resp’t Reply Br. at 9 (citing Peabody Midwest
Mining LLC, 35 FMSHRC 2419 (Aug. 2013) (ALJ); Freedom Energy, Mining Co., 32 FMSHRC
1809, 1829 (Dec. 2010) (ALJ); Ohio Cty. Coal Co., 31 FMSHRC 1486, 1489 (Dec. 2009)
(ALJ)). However, the Commission has indicated that when considering the likelihood of injury
under the third Mathies criterion, the hazard is assumed to have occurred. Newtown Energy, 38
FMSHRC at 2038.
The Secretary does not refute Consol’s contention that the hazard would have been
resolved within the hour. The evidence establishes that it would have taken roughly an hour for
the longwall shearer to compete the second half of its roundtrip at the time in question, and that
the cited condition can arise unexpectedly and is not unusual; it can come and go. Accordingly, I
find that the longwall’s advance would have cut away and corrected the unsupported roof by
12:30 that afternoon.
The Secretary’s assertion that miners could travel through the tailgate to reach the
working face is contradicted by evidence that miners would only travel through the tailgate if
there were an emergency that rendered the primary escapeways unusable. Moreover, the

42 FMSHRC Page 269

Secretary has failed to establish any emergency conditions present during the longwall cycle that
was underway. Additionally, while miners setting timbers in the tailgate earlier in the shift were
nearby, the Secretary has not shown that they worked in the unsupported area between the end of
the longwall and the tailgate, or that they traveled through it while the condition existed. Ex.
R–20; Tr. 510-11. The evidence establishes that the assistant foreman took a methane reading in
the tailgate at 9:20 in the morning. See Ex. R–5 at 4; Ex. P–4. It follows that the next reading
would have occurred sometime around 1:20 that afternoon, well after the hazard would have
been cut away and the longwall advanced. Despite the evidence of falling rock from the
unsupported roof at the time of inspection, I find that the Secretary has failed to establish that
anyone would have been exposed to the hazard between the longwall and the tailgate during its
duration. Consequently, I find that the hazard was unlikely to result in an injury. Therefore, the
Secretary has failed to establish the third Mathies criterion, and this violation was not S&S.
C. Negligence
The Secretary contends that Consol was moderately negligent in violating the standard
because miners were working in the area and failed to address the condition. Sec’y Br. at 13.
Consol contends that its negligence was low because this condition can arise in the ordinary
course of longwall mining, and the condition was not reported. Resp’t Br. at 17. There is no
evidence that miners were working or traveling directly under the unsupported roof, or that
Consol was aware of the hazard before the inspector identified it. Moreover, the evidence
establishes that unstable roof conditions can arise unexpectedly as the longwall operates. I find
that these factors mitigate the negligence and, therefore, that Consol’s negligence was low in
violating this standard.
IV. Penalties
While the Secretary has proposed a total civil penalty of $11,067.00, the judge must
independently determine the appropriate assessment by proper consideration of the six penalty
criteria set forth in section 110(i) of the Mine Act, 30 U.S.C. § 820(i). See Sellersburg Co., 5
FMSHRC 287, 291-92 (Mar. 1983), aff’d 736 F.2d 1147 (7th Cir. 1984).
Applying the penalty criteria, and based on a review of MSHA’s online records, I find
that Consol is a large operator. The record also indicates that Consol demonstrated good faith in
achieving rapid compliance after notice of the violations, and consideration of its history of
violations, from the Assessed Violation History Reports, follows for each citation. Consol has
stipulated that imposition of the proposed penalties will not adversely affect its ability to remain
in business. Jt. Stip. 6.
The remaining criteria involve consideration of the gravity of the violations and Consol’s
negligence in committing them. These factors have already been discussed fully. Therefore,
considering my findings as to the six penalty criteria, the penalties are set forth below.

42 FMSHRC Page 270

1. Citation No. 9077362
It has been established that this violation was unlikely to cause an injury and non-S&S,
and that Consol’s negligence was low. In the fifteen-month period preceding issuance of this
citation for damaged shield hoses, 10 violations of section 75.1725(a) became final orders of the
Commission. Ex. P–9 at 1-2. Given that section 75.1725(a) is a general equipment maintenance
standard, and that the record is lacking as to the specific nature of those violations, I find
Consol’s violation history neither a mitigating nor aggravating factor in assessing the appropriate
penalty. The Secretary has proposed a penalty of $749.00. Applying the civil penalty criteria, I
find that a penalty of $200.00 is appropriate.
2. Citation No. 9077364
It has been established that this S&S violation was reasonably likely to cause an injury
that could reasonably be expected to result in lost workdays or restricted duty, and that Consol
was moderately negligent. In the fifteen-month period preceding issuance of this citation for
combustible accumulations, 67 violations of section 75.400 became final orders of the
Commission. Ex. P–9 at 8-10. Given the volume of coal produced at Bailey, I find Consol’s
violation history significant, but not an aggravating factor in assessing the appropriate penalty.
Applying the civil penalty criteria, I find that a penalty of $1,211.00, as proposed by the
Secretary, is appropriate.
3. Citation No. 9077374
It has been established that this S&S violation was reasonably likely to cause an injury
that could reasonably be expected to result in lost workdays or restricted duty, that six persons
would be exposed to the hazard, and that Consol was moderately negligent. In the fifteen-month
period preceding issuance of this citation for inadequate ventilation of a charging battery, 10
violations of section 75.340(a)(1)(i) became final orders of the Commission. Ex. P–9 at 11-12.
Given that section 75.340(a)(1)(i) is a general standard relating to ventilation of underground
electrical instillations, and the record is lacking as to the specific nature of those violations, I find
Consol’s violation history neither a mitigating nor aggravating factor in assessing the appropriate
penalty. Applying the civil penalty criteria, I find that a penalty of $1,539.00, as proposed by the
Secretary, is appropriate.
4. Citation No. 9077375
It has been established that this violation was unlikely to cause a fatality and non-S&S,
and that Consol was moderately negligent. In the fifteen-month period preceding issuance of
this citation for inadequate ISE box maintenance, 33 violations of section 75.512 became final
orders of the Commission. Ex. P–9 at 5-6. Given that section 75.512 is a general standard
relating to maintenance of electrical equipment, and that the record is lacking as to the specific
nature of those violations, I find Consol’s violation history neither a mitigating nor aggravating
factor in assessing the appropriate penalty. The Secretary has proposed a penalty of $3,161.00.
Applying the civil penalty criteria, I find that a penalty of $1,000.00 is appropriate.

42 FMSHRC Page 271

5. Citation No. 9077376
It has been established that this violation was unlikely to cause an injury and non-S&S,
and that Consol’s negligence was low. In the fifteen-month period preceding issuance of this
citation for inadequate roof support, 9 violations of section 75.202 became final orders of the
Commission, and I find Consol’s violation history neither a mitigating nor aggravating factor in
assessing the appropriate penalty. Ex. P–9 at 3-4. The Secretary has proposed a penalty of
$749.00. Applying the civil penalty criteria, I find that a penalty of $200.00 is appropriate.
IV. Approval of Settlement
The Secretary has filed Motions to Approve Partial Settlement respecting five of the ten
citations involved in these dockets. A reduction in penalty from $3,658.00 to $2,005.00 is
proposed. The citations, initial assessments, and proposed settlement amounts are as follows:
Docket No.

Citation No.

Initial
Assessment

Proposed
Settlement

PENN 2018-0243

9076103
9079127
9076446
9074941
TOTAL:

$336.00
$1,118.00
$502.00
$953.00
$2,909.00

$184.00
$559.00
$326.00
$524.00
$1,593.00

PENN 2018-0255

9077570
TOTAL:

$749.00
$749.00

$412.00
$412.00

GRAND TOTAL:

$3,658.00

$2,005.00

I have considered the representations and documentation submitted in these matters under
section 110(k) of the Act, and I conclude that the proffered settlement is appropriate under
section 110(i) of the Act, and is in the public interest. Specifically, regarding Citation No.
9076103, the Secretary has found the gravity to be less than originally assessed based upon
Respondent’s contentions that no copper wire was exposed, and that the area was not regularly
traveled. Regarding Citation No. 9079127, the Secretary has found the gravity and negligence to
be less than originally assessed based upon Respondent’s contentions that three jacks would
continue to stabilize the bucket if the pin failed, and that the condition could have arisen at any
time. Regarding Citation No. 9076446, the Secretary has found the gravity to be less than
originally assessed based upon Respondent’s contentions that there were no problems with the
ventilation or permissibility, and that the area was adequately rock dusted. Regarding Citation
No. 9074941, the Secretary has found the gravity to be less than originally assessed based upon
Respondent’s contention that the hose had been pressure tested and could withstand five times
the operating pressure. Regarding Citation No. 9077570, the parties believe that the violation
was issued under the incorrect standard, and the Secretary has found the gravity to be less than
originally assessed based upon Respondent’s contentions that the shuttle car was not in operation

42 FMSHRC Page 272

at the time of inspection, that it was not energized, and that a pre-operational exam had not been
performed.
ORDER
WHEREFORE, it is ORDERED that Citation Nos. 9077364 and 9077374 are
AFFIRMED, as issued; and that Citation Nos. 9077362, 9077375 and 9077376 are
AFFIRMED, as modified.
WHEREFORE, the Secretary’s Motions to Approve Partial Settlement are GRANTED,
and it is further ORDERED that the Secretary MODIFY Citation Nos. 9076103 and 9074941 to
reduce the level of gravity to “unlikely” and remove the “significant and substantial”
designation; Citation No. 9079127 to reduce the level of gravity to “unlikely” and remove the
“significant and substantial” designation, and reduce the degree of negligence to “low;” Citation
No. 9076446 to reduce the level of gravity to “2 persons affected;” and Citation No. 9077570 to
allege a violation of 30 C.F.R. § 75.517, and reduce the level of gravity to “unlikely” and remove
the “significant and substantial” designation.
WHEREFORE, it is further ORDERED that Consol Pennsylvania Coal Company,
LLC, PAY a civil penalty of $6,155.00 within 30 days of the date of this Decision.13
ACCORDINGLY, these cases are DISMISSED.

/s/ Jacqueline R. Bulluck
Jacqueline R. Bulluck
Administrative Law Judge

13

Payment should be made 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.

42 FMSHRC Page 273

Distribution:
Matthew Epstein, Esq., U.S. Department of Labor, Office of the Solicitor, The Curtis Center
170 S. Independence Mall West, Ste. 630E, Philadelphia, Pennsylvania 19106
epstein.matthew.r@dol.gov
James McHugh, Esq., Hardy Pence, PLLC, 500 Lee Street, Suite 701, Charleston, West Virginia
25301
jmchugh@hardypence.com
Kenneth J. Polka, Conference & Litigation Representative, U.S. Department of Labor, MSHA,
631 Excel Drive, Suite 100, Mt. Pleasant, Pennsylvania 15666
polka.kenneth@dol.gov
Craig Aaron, CONSOL Energy Inc., 1000 CONSOL Energy Drive, Suite 100, Canonsburg,
Pennsylvania 15317
craigaaron@consolenergy.com

42 FMSHRC Page 274

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

March 30, 2020
KOMSAN (TROY) WOODEN,
Complainant,

DISCRIMINATION PROCEEDING
Docket No. WEST 2018-0306-DM
MSHA No. RM-MD-18-06

v.
GENESIS ALKALI, LLC,
Respondent.

Mine: Genesis Alkali @ WESTVACO
Mine ID: 48-00152

DECISION AND ORDER
Appearances:

Komsan (Troy) Wooden, pro se, Rock Springs, Wyoming, Complainant
Erik M. Dullea, Esq., Ephraim Hintz, Esq., Husch Blackwell LLP,
Denver, Colorado, for Respondent

Before:

Judge L. Zane Gill
I. STATEMENT OF THE CASE

This proceeding arises from section 105(c)(3) of the Federal Mine Safety and Health Act
of 1977 (“Mine Act” or “Act”), 30 U.S.C. § 815(c)(3). Komsan (Troy) Wooden alleges that
Respondent Genesis Alkali, LLC terminated his employment because he engaged in section
105(c) protected activities. Respondent argues that Wooden has failed to meet his burden to
establish a prima facie case because there is no causal nexus between the protected activity and
the adverse action taken against him. Respondent argues that Wooden’s probation and
termination was instead the result of unprotected workplace violations that would have justified
adverse action irrespective of Wooden’s engagement in protected activities.
For the reasons that follow, I find that Wooden engaged in section 105(c) protected
activities and that his probation and termination constitute adverse action. However, I find that
there is insufficient evidence to infer a causal nexus between Wooden’s protected activities and
this adverse action. For this reason, I find that Wooden has failed to state a prima facie case for a
section 105(c) discrimination claim. Even if Wooden were to have met his prima facie burden,
ultimately, I also find that Respondent provided sufficient evidence to rebut the prima facie case,
or, alternatively, presented a credible and sufficient affirmative defense that Wooden’s probation
and termination were motivated by unprotected activities.

42 FMSHRC Page 275

II. FACTUAL AND PROCEDURAL BACKGROUND1
Respondent is the operator of the Genesis at Westvaco Mine, an underground trona mine
and surface milling facility located in Sweetwater County, Wyoming. (Tr. 38:19-38:21)
Complainant Wooden was first employed by Genesis on June 3, 2013. (Wooden Dep. 45:845:15) He worked as a maintenance mechanic at Genesis until December, 2017. During the
course of his employment, Wooden worked at several different plants at Westvaco. On January
5, 2017, Wooden began working at the Caustic Plant, where he remained until his employment
was terminated in December, 2017. (Tr. 11:1-11:15; 13:4-13:6)
Wooden’s discharge from employment is the subject of this case. Wooden alleges a series
of events which he claims shows that Respondent’s management harbored animus against him,
animus that he claims led the Respondent to single him out for retaliatory probation and
termination. Although Respondent’s management was aware that Wooden had participated in
some protected activity, it does not agree that all of the instances Wooden claims were protected
activity constituted protected activity in fact. In rebuttal, Respondent maintains that Wooden was
fired for two instances of misuse of company vehicles. Following the first instance of
unauthorized vehicle use, management placed Wooden on Decision Making Leave (DML) and
negotiated a Last Chance Agreement (LCA) which provided that further violation of company
rules or expectations would result in immediate discharge. (Tr. 454:3-10) Following the second
vehicle incident barely four weeks later and after Wooden signed the Last Chance Agreement,
management terminated Wooden without reference to any instances of protected activity. (Tr.
481:3-16) Respondent contends that it would have fired Wooden for the unprotected activity
alone, irrespective of his involvement in any protected activity.
On January 16, 2018, Wooden filed a discrimination complaint with MSHA relating to
his termination. On March 2, 2018, MSHA notified Wooden that there was insufficient evidence
to support his section 105(c) allegations. Wooden initiated this case on April 3, 2018. The parties
presented testimony and documentary evidence at a hearing in Rock Springs, Wyoming.
Respondent submitted a brief, and Wooden submitted a short written statement, both of which
were received and considered in preparing this decision. The parties stipulate that the
Administrative Law Judge (“ALJ”) and the Commission have subject matter jurisdiction over
this action pursuant to section 113 of the Mine Act, 30 U.S.C. § 823.

1

The findings of fact here and below are based on the record as a whole and my careful
observation of the witnesses during their testimony. In resolving any conflicts in the testimony, I
have taken into account the interests of the witnesses, or lack thereof, and consistencies, or
inconsistencies in each witness’s testimony and between the testimonies of other witnesses. In
evaluating the testimony of each witness, I have also taken into account his or her demeanor.
Any perceived failure to provide detail about any witness’s testimony is not a failure on my part
to consider it. The fact that some evidence is not discussed does not mean that it was not
considered. See Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000) (ALJ is not required to discuss
all evidence and failure to cite specific evidence does not mean it was not considered). I have
also fully considered the contents of the official file, including the pre- and post-hearing
submissions of the parties, and the exhibits admitted into evidence.

42 FMSHRC Page 276

III. ANALYSIS
The question before me is whether Wooden’s probation and termination were influenced
by his involvement in “protected activity.” As part of his burden to make a prima facie showing
of discriminatory intent, Wooden must show that his probation and termination were motivated,
at least partially, by his engagement in protected activity under section 105(c). I must determine
whether the evidence in total, including the inferential evidence, has sufficient circumstantial
weight to satisfy his prima facie burden to show discrimination.
To establish a prima facie case of discrimination under section 105(c)(1), Wooden must
show: (1) that he engaged in a protected activity; and, (2) that the adverse action he complains of
was motivated, at least in part, by that activity. Sec’y of Labor on behalf of Robinette v. United
Castle Coal, Co., 3 FMSHRC 803 (Apr. 1981); Sec’y of Labor on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev'd on other grounds sub
nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d. Cir. 1981). The operator may
rebut the 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 v. Nat’l Cement of CA,
33 FMSHRC 1059, 1064 (May 2011). The operator may also defend affirmatively by proving
that, “it was also motivated by the miner’s unprotected activity and would have taken the adverse
action for the unprotected activity alone.” Id.
Wooden testified about several incidents preceding his probation and termination that
created an impression in his mind that Genesis was singling him out. These incidents fall into
two groups: Genesis’ reaction to Wooden’s protected activity, and events that do not relate to
protected activity, yet may show animus. In evaluating these events and issues, I am aware that it
is possible that the Respondent’s actions toward Wooden for unprotected activities may infer
malice toward him that could have led to his being singled out for adverse treatment in those
incidents that are legitimately considered “protected activity.”
A.

Wooden engaged in protected activity.

To satisfy the first prong of the Pasula-Robinette test for a prima facie case of
discrimination, Wooden must show that he engaged in protected activity. Robinette, 3 FMSHRC
at 803; Pasula, 2 FMSHRC at 2786. While section 105(c)(1) does not include the term
“protected activity”, Commission cases have nevertheless found that the section defines certain
protected activities. An individual covered by section 105(c)(1) engages in protected activity if
(1) he “has filed or made a complaint under or related to this Act, including a complaint . . . of an
alleged danger or safety or health violation[;]”, (2) he “is the subject of medical evaluations and
potential transfer under a standard published pursuant to section 101[;]”, (3) he “has 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) he has exercised “on behalf of himself or others . . . any
statutory right afforded by this Act.” 30 U.S.C. § 815(c)(1).
When a complainant asserts that he engaged in a protected activity that is not expressly
enumerated under the Mine Act, the activity may still be protected if it furthers the purpose of
the legislation. The legislative history of the Mine Act states that Congress intended “the scope
of the protected activities be broadly interpreted by the Secretary.” S. Rep. No. 95-181 at 35
(1977) (emphasis added). Moreover, the history notes that “the listing of protected rights

42 FMSHRC Page 277

contained in [what eventually became section 105(c)(1)] is intended to be illustrative and not
exclusive,” and that the section should be “construed expansively to assure that miners will not
be inhibited in any way in exercising any rights afforded by the legislation.” Id. at 36. I find that
there is ample evidence to demonstrate that Wooden engaged in a number of protected activities.
1.

MSHA Complaint and Racial Slur

From January 2017 to April 2017, Clyde Muir was Wooden’s immediate supervisor at
the Genesis Caustic Plant. (Tr. 12:19-12:23; 552:1-552:12) On April 3, 2017, MSHA inspector
Ben Jones came on site and requested to speak to miners (not management) about some issues,
including defective metal ladders. According to Wooden’s testimony, Muir wanted to participate
in the meeting with the inspector, but Inspector Jones did not allow his involvement. (Tr. 13:2414:18) A few days later on April 6, 2017, Muir accused Wooden of calling MSHA and making a
safety complaint. (Tr. 15:5-11; 279:3-280:4) The accusation related to an earlier incident when
Wooden had reported that the steering and suspension on a company truck he had used to drive
home a few days prior was defective. Muir raised the issue of the inspector’s visit by snidely
suggesting to Wooden that if he wanted to complain about the truck, he should take it up with the
MSHA inspector. (Tr. 14:19-15:11) During his site visit, Jones had given Wooden his business
card with a contact number. Wooden used this number to contact Inspector Jones about Muir’s
statements regarding the defective truck. In response, Jones returned to the site along with
another inspector, Brett Stenson. (Tr. 15:11-17)
Wooden also revealed Muir’s hostile reaction to Wooden’s report of the defective
steering and suspension on a company truck to Genesis Safety Manager Andrea Walton. (Tr.
15:11-17) Walton assured Wooden that he was within his rights to complain about Muir’s
comments, reminded Muir that all miners have the right to contact MSHA, and then referred the
matter to human resources. (Tr. 279:3-280:10) On April 30, 2017, approximately two weeks
after Wooden complained about Muir, Genesis terminated Muir for, among other things,2
accusing Wooden of contacting MSHA and making derogatory comments about Wooden’s
ethnicity. (Tr. 361:10-364:5; 375:17-376:5; 552:2-23; 579:8-20; 579:13-23; Wooden Dep.
120:13-122:6; Ex. R-43, p.3)
Wooden’s interactions with the MSHA investigators, including a possible hazard
complaint to MSHA and reporting a defective ladder to an MSHA inspector, constitute protected
activity, as does his interaction with the company’s safety manager. However, the evidence fails
to support a finding that Wooden’s probation and ultimate termination for repeated unauthorized
use of a company vehicle was in any way connected to this protected activity or to Muir’s
missteps.

2

Muir made a statement to a group of miners that implied that a bad odor in the break
room was caused by food brought in by Wooden. (Tr. 375:17-376:5) By extension, since it was
widely known that Wooden was half Thai (his mother) (Tr. 13:21-22; 20:14-16), those who
heard the comment understood it to be racially insulting. (Tr. 361:20-362:10; 363:12-20)

42 FMSHRC Page 278

2.

Magnet Lift and Management Response

On May 1, 2017, Maintenance Manager Rick Scorcz (Tr. 17:16-25) instructed Wooden
and two other miners to lift a 275-lb. magnet into the bed of a pick-up truck. (Tr. 16:5-17) The
men knew the magnet was heavy, but decided to lift it without machine help (Tr. 120:4-25),
although they did use a length of pipe as a lifting pole. (Tr. 16:20-17:15) As they were lifting,
Wooden had trouble because he was shorter than the other two men. (Tr. 121:2-8) The magnet
shifted on the lift pole and Wooden strained a muscle in his right shoulder. (Tr. 16:20-17:15)
Wooden reported his injury to interim supervisor Dorothy Yacobacci (Tr. 285:12-18) who told
Wooden to go to Medcor to get his shoulder checked. (Tr. 18:4-16) Medcor did not treat
Wooden’s shoulder. He was prescribed over-the-counter pain pills. (Tr. 18:20-19:1) Since there
was no treatment given, Wooden’s injury was non-reportable. (Tr. 281:3-8) Wooden thought that
was the end of it. (Tr. 18:19-19:3)
The Safety Department at Genesis performs Root Cause Analysis meetings to identify the
causes of miners’ injuries with the intent of preventing the recurrence of similar incidents. (Tr.
267:24-268:4) On May 10, 2017, Wooden was summoned to an RCA meeting held in response
to the magnet lift incident. (Tr. 19:4-6; 153:6-16) 3 Maintenance Director Andre Azevedo
attended the meeting. Azevedo is a non-native English speaker (Brazilian). At one point,
Azevedo attempted to make the point that he believed discipline for Wooden was appropriate,
and because of his limited English skill, made an inappropriate analogy to his father’s use of
corporal punishment accompanied by a gesture to his belt. (Tr. 176:18-176:24) Because of
Azevedo’s inappropriate and inexcusable outburst, the RCA meeting was abruptly terminated by
Scorcz.4 Management regarded the outburst as a breach of protocol and took prompt and
appropriate disciplinary action against Azevedo. Human Resources was directed to investigate
the incident. Azevedo was quickly and vigorously reprimanded by the site’s vice president and
informed that similar actions in the future would be “career limiting.” (Tr. 368:24-370:20)
On May 18, 2017, Wooden and union steward, Casey Warne, were called into another
meeting relating to the magnet incident. (Tr. 142:13-19) This meeting was not a fact-finding
event. The company wanted to inform Wooden that they had looked into the Azevedo incident
and taken swift corrective action. (Tr. 149:9-20)
On May 26, 2017, Moeller returned from shoulder surgery (Tr. 130:24:131:2; 734:21-25)
and called another meeting to do a full root cause analysis of the magnet incident. (Tr. 739:24741:3) On July 17, 2017, Wooden received a “first conference,” a low level of discipline, for his
role in the magnet lift incident based on his failure to communicate to his co-workers that he was
struggling to maintain control of the magnet as they lifted it into the bed of the pick-up truck.
(Tr. 22:8-16; 255:12-256:24; 379:3-380:2; 592:4-22) His co-workers were not disciplined for
their roles in the magnet incident, but received coaching and counseling. (Tr. 133:1-11; 380:33

A root cause analysis (RCA) is a process that allows the company to investigate
workplace accidents in order to learn from them and promote safer conduct going forward. (Tr.
149:21-150:4; 267:24-268:6; 275:10-19; 307:19-308:2; 401:15-402:1)
4

Scorcz was filling in for Maintenance Area Manager Mike Moeller. (Tr. 21:10-19;
183:5-10)
42 FMSHRC Page 279

381:10; 616:7-617:10; Ex. R-19) Wooden believed that Genesis’ actions relating to the magnet
incident constituted targeted harassment against him. (Tr. 108:10-109:23)
Former Genesis HR Manager Kimberly Huber testified that first conferences were the
lowest level of actual discipline that the company could impose and that their issuance was a
“regular course of business [when] working to try to correct employee conduct …” even though
the union grieved most of the discipline actions. (Tr. 552:15-23; 554:20-555:9) No one in
management, including Azevedo, argued that Wooden should be disciplined simply because he
reported his shoulder strain or because of the argument with Azevedo during the RCA. (Tr.
380:18-381:10) Even if Wooden had not reported a shoulder strain after lifting the magnet, had
the Safety Department learned about the event and the height disparity causing a potential
accident separately, Safety still would have conducted an RCA. (Tr. 414:23-415:9) The reason
Wooden received a first conference was not because he reported an injury, but rather that he took
an unnecessary risk by manually lifting the magnet when he was aware of the substantial weight
of the magnet after lifting it onto a cart. (Tr. 746:18-747:6; Ex. R-62, p. 7)
The union filed a grievance on behalf of Wooden in opposition to the first conference.
(Tr. 554:7-554:10) The union later abandoned its grievance rather than taking the dispute to
arbitration. (Tr. 554:5-554:17) In August 2017, Wooden filed a 105(c) complaint with MSHA.
(R-62 pp.17-18) Wooden described the magnet lift incident to MSHA Special Investigator Ken
Valentine during a subsequent interview. Wooden admitted the magnet was heavy enough that
the miners felt they should use mechanical means to lift it. (Tr. 746:19-747:6; Ex.R-62 p. 7)
Wooden’s statements to Valentine regarding the miners’ behavior and decisions were consistent
with Moeller’s testimony and supported the issuance of a first conference to Wooden for his risk
tolerance based on Wooden’s admitted awareness of the magnet’s weight. (Tr. 740:2-741:3)5
Wooden’s disclosure of his shoulder injury and his section 105(c) complaint filed with
MSHA over his first conference constitute protected activity. However, the evidence fails to
support a finding that Wooden’s probation and ultimate termination for repeated unauthorized
use of a company vehicle was related to this protected activity in any way.
3.

Self-Direct Charter and Inspection Forms

In the fall of 2017, Genesis was preparing to implement and comply with an MSHA
revised rule on workplace examinations.6 This “Self-Direct Charter” expected greater employee
engagement and gave participants additional accountability, responsibility, and authority to make
decisions in exchange for a wage increase. (Tr. 594:2-594:17) The company emphasized a
company-wide policy of completing on-shift shop inspection forms. Wooden interpreted this
5

In its negative finding for Wooden’s 105(c) complaint, MSHA specifically stated
that there was insufficient evidence to prove Genesis violated the Mine Act in its response to the
magnet lift incident. (Wooden Dep. 188:14-189:4)
6

See Examinations of Working Places in Metal Non-Metal Mines, 83 Fed. Reg. 15055,
15056 (Apr. 9, 2018) (describing the multiple extensions to the effective date on October 5,
2017, from October 1, 2017 to June 2, 2018).

42 FMSHRC Page 280

new policy focus as being directed at him and believed that he would be exposed to a new degree
of scrutiny and perhaps discipline. As a result, Wooden was reluctant to sign forms related to the
new policy and interpreted management’s efforts to get his signature as harassment. Specifically,
Wooden believed that anyone participating in the new Self-Direct Charter should have additional
training covering the requirements of the on-shift inspections, and that he had not been so
trained. (Tr. 118:3-119:17) He was concerned that he might make a mistake in performing the
on-shift inspections due to a lack of proper training that would expose him to possible discipline.
(Tr. 24:9-24:18) However, Wooden had attended several training events on workplace
examinations provided by Genesis in 2017. (Ex. R-1, p.2; Tr. 269:3-270:19)
Further, Wooden placed significant emphasis on the alleged harassment he faced about
shop inspection forms, but in his answers to the Court’s questions, he admitted he had never been
disciplined for missing an item during a shop inspection. (Tr. 190:13-17) Wooden selectively
invoked the F Crew Charter’s protections at the hearing and testified that he could make
management-level decisions, but he did not expect to be held accountable for making these
decisions. (Tr. 22:24-23:12; 29:16-30:6; 198:4-199:1)
Wooden’s communications with management about the Self-Direct Charter constitute a
protected activity. However, there is insufficient evidence to support a finding that Wooden’s
probation and ultimate termination for repeated unauthorized use of a company vehicle was in
response to this activity.
B.

Wooden was terminated for misusing company vehicles on two occasions.

Without doubt, some of the incidents Wooden testified about are properly considered
protected activities. However, Genesis cites two instances of Wooden’s unprotected activity as
justification for his probation and termination. Like most MSHA discrimination cases, this
dispute centers on the question of motivation. An analysis of Wooden’s relevant unprotected
activities follows.
1.

The Camper Incident

The predicate for Wooden’s termination occurred on October 25, 2017, when he used a
company vehicle to tow his camper from his home in Rock Springs, Wyoming, to a location in
the back country where he liked to hunt. (Tr. 30:13-15; 349:19-350:9) Wooden did not have
permission to use a company vehicle for personal use. He argued that such personal use was
appropriate and in keeping with prior practice and company culture (Tr. 223:18-224:1; 561:17562:4), claiming that he was justified in using a company truck to tow his personal camper
because other employees had used company vehicles for personal purposes in the past. (Tr.
199:18-201:14; 223:18-224:1; 619:6-14; Ex. R-27) The evidence proves otherwise. (Tr. 443:1217)
Wooden’s misuse of the vehicle was discovered when his manager, Mike Moeller, saw
the company truck pulling a camper through town on October 26, 2017 (Tr. 440:17-441:21; Ex.
R-25) and confirmed that Wooden had signed the truck out by reviewing vehicle check-out
records. On November 1, 2017, the company started its normal process of investigating what had

42 FMSHRC Page 281

happened. (Tr. 31:2-11) It was confirmed that Wooden had used a company truck to tow his
personal camper, that he did not seek permission to do so (Tr. 489:10-21; 500:20-501:4; 645:24646:5; 654:25-655:13), that there was no company history or practice that would justify such use
(Tr. 442:20-443:11), and that Wooden prevaricated during the fact-finding process with the
intent to minimize his violation. (Tr. 603:7-25; 606:17-607:4; 607:17-608:11; 618:21-619:5;
622:8-623:7; Ex. R-28)
Genesis did not have a specific policy preventing this type of use by hourly employees
(Tr. 201:20-204:3; 225:17-25; 446:14-448:20; 511:16-512:2), but it presented convincing
evidence that no such prior practice had ever been tolerated. (Tr. 222:24-223:12; 242:11-25;
243:1-3; 448:21-24; 704:20-24) In fact, another employee, Jarvis Koeven, had been put on
Decision Making Leave (DML) probation prior to Wooden’s event for a single occurrence of
essentially the same violation. (Tr. 471:13-472:2; 473:3-11; 559:23-560:5; Ex. R-44) Further, a
supervisor Wooden claimed had previously allowed personal use of a company truck had been
fired in part because he agreed to allow an employee to take a piece of company equipment for
personal use. (Tr. 620:14-24) Instead of taking care to be certain that using a company vehicle
for personal use was permissible, Wooden exhibited a reckless lack of judgment which was
repeated weeks later.
During the fact-finding process for this camper-towing incident, there was discussion of
simply firing Wooden rather than placing him on DML probation. (Tr. 559:6-19) Some members
of management felt that this incident alone justified termination. (Tr. 614:12-19) Wooden was
offered a DML instead of termination on November 2, 2017. (Tr. 31:2-11; 614: 9-11) The DML
included a Last Chance Agreement (LCA). It was clear under the terms of the LCA that any
violation of company expectations after that point in time could result in immediate termination.
(Tr. 480:10-19; 531:21-532:3; Ex. R-30) The evidence put forth by Wooden does not support his
excuse. However, this first instance of misuse of a company vehicle was resolved by the
imposition of the last-chance discipline agreement (DML).
2.

The Overtime Event

Wooden was fired for a second incident of unauthorized use of a company vehicle less
than a month after being placed in a last-chance status for the unauthorized camper-towing event.
(Tr. 481:3-16) On December 13, Wooden and a co-worker, Josh Holloway, were assigned to a
project that involved repairing some drain line piping. (Tr. 57:20-58:9) Keith Herren, their
supervisor for the project (Tr. 59:2-23), announced that there might be overtime for Wooden and
Holloway’s project depending on various factors to be determined as the week progressed. (Tr.
707:2-6; 707:24-708:1) By company practice, overtime had to be specifically approved by a
supervisor. (Tr. 133:12-19; 501:5-502:11; 683:21-684:21; 689:25-690:14; Ex. R-37) A worker
could not assume that there would be overtime. (Tr. 707:7-12) Despite knowing how overtime
was announced and the way by which it must either be confirmed or allowed to lapse, Wooden
took it upon himself to assume that he could work the pipe project into overtime. (Tr. 33:1338:1; 500:11-16) Close to the end of the day, Wooden talked to Herren, who asked him how the
job was going. Wooden said nothing about working overtime to finish the project. (Tr. 635:1219; 675:5-14) Wooden testified that he assumed overtime would be approved, but he did not take

42 FMSHRC Page 282

advantage of the opportunity to get clarification from Herren when the two of them spoke shortly
before shift end.
When compared to coworker Holloway’s contrasting reaction to the same situation,
Wooden’s intemperance is apparent. Holloway understood that overtime had not been approved.
(Tr. 491:15-22) Nor did he fault Herren for his getting “whistle-bit” by losing track of the time
and working past the end of his shift. (Tr. 660:6-9) Holloway accepted personal responsibility
and had no intention of filing a grievance over the overtime issue. (Tr. 639:4-24; 659:5-11;
713:11-17; Ex. R-39) In contrast, Wooden defended his actions by testifying that he expected
Herren to state affirmatively that there would be no overtime and that saying nothing was not
enough. (Tr. 673:12-20)
After working past the end of his normal shift (Tr. 75:22-24; 659:9-20; 711:11-18),
Wooden unilaterally decided to use a company truck to drive home. (Tr. 33:13-38:1; 115:21116:8; 353:4-354:13; 624:2-6; 645:24-646:13; 716:11-18; 747:24-748:3; Ex. R-31; Ex. R-33) He
did not use any of the available options (Tr. 497:15-498:20; 499:11-21; 645:24-646:5; 654:14655:13; 685:1-6) to get last-minute management approval to drive the company vehicle home,
even though he knew of the options and how to proceed. (Tr. 497:15-498:20; 624:2-6; 645:24646:13; 716:11-18; 747:24-748:3; Wooden Dep. 254:3-11; Ex. R-33; Ex. R-37) Puzzlingly,
Wooden placed a call (unanswered) to Andy Martinez, his union president, instead of calling a
management official for permission to drive the vehicle home. (Tr. 37:4-18; Tr. 654:25-655:13)
He then sent a text message to Herren, not requesting permission to use a vehicle, but instead
accusing Herren of dropping the ball by not expressly stating that there would be no overtime for
the pipe project. (Tr. 714:10-715:2) Herren texted in reply that overtime was not authorized.
Wooden then took Moeller’s assigned vehicle, signed it out at the guard station without
authorization, and drove it home. (Tr. 498:21-499:4; Tr. 654:14-24; Ex. R-35)
This action violated the last chance agreement from the camper towing incident only a
month before. (Tr. 350:24-351:6; 481:3–16; 624:2-6; 645:24-646:13; 716:11-18; 747:24-748:3)
Wooden claimed that he believed his supervisor wanted him to work overtime, and under normal
overtime practices, would have authorized him to use a company vehicle to get home after the
overtime work. But the evidence shows that the supervisor did not authorize overtime and that
Wooden took a company vehicle home without permission and without even attempting to either
confirm the overtime or obtain permission to use the vehicle.
Wooden was terminated on December 20, 2017. (Ex. X; Ex. R-41) The overtime incident
reveals no malice or overreach by management toward Wooden. When Wooden violated the
vehicle use practices for a second time within a month, particularly considering that he knew that
he was on disciplinary probation and that any disciplinary infraction could result in his
immediate firing, the company acted appropriately and justifiably. Any prior friction felt by
Wooden between himself and management is not evident in the two vehicle misuse incidents.

42 FMSHRC Page 283

C.

Wooden’s probation and termination were not motivated by his protected activity.

The second prong of the Pasula-Robinette test for a prima facie case of discrimination
requires a showing that Genesis took an adverse action against Wooden that was motivated, at
least in part, by Wooden’s protected activity. Robinette, 3 FMSHRC at 817–18; Pasula, 2
FMSHRC at 2799–800, rev'd on other grounds sub nom. Consolidation Coal Co., 663 F.2d 1211
(3d. Cir. 1981). This second prong of the Pasula-Robinette test may be further separated into two
sub-questions: (1) whether there was an adverse action; and, if so, (2) whether there was a
motivational nexus, at least in part, between the adverse action and the Complainant’s protected
activity.
1.

Wooden’s probation and termination constitute adverse employment actions.

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.” 601 F.3d at 428 (quoting Sec'y on behalf of Jenkins v. Hecla-Day Mines Corp., 6
FMSHRC 1842, 1847–48 (Aug. 1984)). The Commission has recognized that, while
“discrimination may manifest itself in subtle or indirect forms of adverse action,” at the same
time “an adverse action ‘does not mean any action which an employee does not like.”’ HeclaDay Mines Corp., 6 FMSHRC at 1848 n.2 (quoting Fucik v. United States, 655 F.2d 1089, 1096
(Ct. Cl. 1981)). Consequently, where the action alleged to be adverse against the miner is not
self-evidently so, such as a discharge or suspension would be, the Commission will closely
examine the surrounding circumstances to determine the nature of the action. Id. at 1848.
“Determinations as to whether an adverse action was taken must be made on a case-by-case
basis.” Id. at 1848 n.2. The Commission has found that a discharge, demotion, or termination is
an adverse employment action. See McKinsey, 36 FMSHRC at 1186 (citing 30 U.S.C. §
815(c)(1)); see also Moses v. Whitley Dev. Corp., 4 FMSHRC 1475, 1478 (Aug. 1982), aff'd,
770 F.2d 168 (6th Cir. 1985). Wooden was first placed on probation and ultimately terminated
from his employment, and thus has shown that adverse action was taken against him. Genesis
does not deny this.
2.

There was no motivational nexus between Wooden’s protected activity and
the adverse action taken against him.

Having established the existence of both a protected activity and an adverse action,
Wooden must next show that the adverse action was motivated, at least in part, by the protected
activity. Robinette, 3 FMSHRC at 817–18; Pasula, 2 FMSHRC at 2799–800, rev'd on other
grounds sub nom. Consolidation Coal Co., 663 F.2d 1211 (3d. Cir. 1981). It is significant that
hostility or animus on a person-to-person level is not enough to show the required motivational
nexus. Management’s hostility must be shown to arise from the claimant’s involvement in
protected activity. Turner reiterated the clear difference in the quantum of proof a claimant must
provide to ultimately prevail in a discrimination case as opposed to the minimal showing
required to establish the prima facie case. 33 FMSHRC 1059 (May 2011). “[T]o make out a
prima facie case of discrimination, the [discriminatee] need only submit enough evidence so that
the record could support an inference” that the termination resulted, at least in part, from
protected safety complaints. Id. at 1066 (internal citations omitted) (emphasis in original).

42 FMSHRC Page 284

The Commission has noted that “direct evidence of motivation [. . .] is rarely
encountered; more typically, the only available evidence is indirect.” Chacon, 3 FMSHRC at
2510. Such indirect, circumstantial evidence may include: (1) coincidence in time between the
protected activity and the adverse action; (2) knowledge of the protected activity; (3) hostility or
animus toward the protected activity; and, (4) disparate treatment. Id; Turner, 33 FMSHRC at
1066; Matthew Bane v. Denison Mines (USA) Corp., now known as Energy Fuels Resources
(USA), Inc., 39 FMSHRC 897, 917-18 (ALJ, Apr. 27, 2017). The more that hostility or animus is
specifically directed toward the protected activity, the more probative it is of discriminatory
intent. Id. In Bradley v. Belva Coal Co., with regard to the issue of motivation, the Commission
found that “circumstantial evidence […] and reasonable inferences drawn therefrom may be used
to sustain a prima facie case.” 4 FMSHRC 982, 992 (June 1982) (citing Chacon, 3 FMSHRC at
2510-12). “Furthermore, inferences drawn by judges are ‘permissible provided they are
inherently reasonable and there is a logical and rational connection between the evidentiary facts
and the ultimate fact inferred.”’ Colo. Lava, Inc., 24 FMSHRC 350, 354 (Apr. 2002) (citing MidContinent Res., Inc., 6 FMSHRC 1132, 1138 (May 1984)).
a.

Coincidence in Time

The Commission has stated that “[a]dverse action under circumstances of suspicious
timing taken against the employee who is [a] figure in protected activity casts doubt on the
legality of the employer’s motive […].” Chacon, 3 FMSHRC at 2511. The Commission has also
stated, “[W]e ‘appl[y] no hard and fast criteria in determining coincidence in time between
protected activity and subsequent adverse action when assessing an illegal motive. Surrounding
factors and circumstances may influence the effect to be given to such coincidence in time.”’
Hyles, 21 FMSHRC at 132 (quoting Hicks v. Cobra Mining, Inc., 13 FMSHRC 523, 531 (Apr.
1991)). Although improper motive has been found in cases with varying periods between the
protected activity and the adverse action, improper motivation is often found “where the
complainant proved that the operator knew of the protected activities and that only a short period
of time elapsed between the protected activity and the discharge.” Sec’y of Labor on behalf of
Baier v. Durango Gravel, 21 FMSHRC 953, 958 (Sept. 1999) (citing Sec’y of Labor on behalf of
Knotts v. Tanglewood Energy, Inc., 19 FMSHRC 833, 837 (May 1997)).
The evidence of timing does not support a finding or inference of a motivational nexus
between Wooden’s protected activity and the adverse action taken against him. Genesis did not
terminate Wooden until at least four months after the occurrence of Wooden’s most recent
protected activity, the first MSHA investigation following Wooden’s first discrimination
complaint. (Ex. R-62) Importantly, following this event, Wooden was not disciplined again until
he used the company truck to tow his camper in November. The timing between Wooden’s
misconduct leading to his November and December disciplinary events was exclusively in his
control. The discipline dealt by management was based solely on his actions and involved two
intervening incidents of misuse of company vehicles in the span of about a month. There is no
evidence of Genesis committing any acts of hostility, animus, or disparate treatment toward the
complainant’s protected activity during this four-month period. To the contrary, management
provided sufficient evidence to show that its reactions to Wooden’s actions and behavior during
this period resulted in fair and consistent treatment, even in instances where Genesis could have
imposed additional discipline.

42 FMSHRC Page 285

b.

Knowledge of the Protected Activity

The Commission has held that “an operator’s knowledge of the miner’s protected activity
is probably the single most important aspect of a circumstantial case.” Baier, 21 FMSHRC at
957 (citing Chacon, 3 FMSHRC at 2510). Whether the operator had knowledge of the protected
activity may be “proved by circumstantial evidence and reasonable inferences.” Id. The
Commission has also held that “discrimination based upon a suspicion or belief that a miner has
engaged in protected activity, even though, in fact, he has not, is proscribed by section
105(c)(1).” Moses, 4 FMSHRC at 1480. Additionally, the Commission has held that “a
supervisor’s knowledge of the protected activity may be imputed to the operator where
knowledgeable supervisors are consulted regarding the miner’s employment.” Sec’y of Labor on
behalf of Pappas v. Calportland Co., 38 FMSHRC 137, 146 (Feb. 2016); see also Turner, 33
FMSHRC at 1067–68 (imputing knowledge and animus of miner’s direct supervisors to official
making disciplinary decision); Metric Constructors, Inc., 6 FMSHRC 226, 230 n.4 (Feb. 1984)
(stating that “[a]n operator may not escape responsibility by pleading ignorance due to the
division of company personnel functions.”).
The Respondent does not dispute its knowledge of the events listed above. However,
management’s knowledge of protected activity alone does not prove wrongdoing. Genesis
admitted its knowledge of Wooden’s protected activity, but Wooden has the burden to prove that
Genesis was motivated by this knowledge. Wooden failed to provide convincing evidence that
knowledge of his protected activity motivated Genesis to place him on probation or terminate his
employment for misuse of company vehicles.
c.

Hostility or Animus

The Commission has held that “[h]ostility towards protected activity – sometimes
referred to as ‘animus’ – is another circumstantial factor pointing to discriminatory motivation.
The more the animus is specifically directed toward the alleged discriminatee’s protected
activity, the more probative weight it carrie[s].” Chacon, 3 FMSHRC at 2511. Animus can take
the form of action or inaction. Turner, 33 FMSHRC at 1069. Wooden claimed that Genesis was
hostile towards his protected activity. However, there is no evidence of this alleged animosity.
The examples Wooden provided at hearing were subjective and unconvincing.
Wooden testified at the outset of the trial that harassment directed at him escalated
following his complaint to the safety department about Clyde Muir. (Tr. 14:19-15:20) The
testimony and documents related to Wooden’s complaints about Muir show that Genesis agreed
with Wooden and took prompt corrective action against Muir. Andrea Walton immediately
reminded Muir that Wooden had every right to speak to MSHA, and because Walton was
troubled by Muir’s response, she notified HR, who in turn commenced an investigation into
Muir’s conduct. (Tr. 15:5-11; 279:3-280:4; 279:3-280:10) Contrary to Wooden’s belief, the trial
record shows that management did not fault Wooden for Muir’s behavior and eventual discharge.
(Tr. 552:13-552:23)
Genesis did not show hostility or animus in its response to the magnet lift incident. The
Root Cause Analysis process was used to identify risky behavior and minimize the possibility of

42 FMSHRC Page 286

injuries from similar events in the future. Genesis did not target Wooden in relation to Azevedo’s
outburst during the RCA meeting. Rather, Genesis investigated Azevedo’s actions and
determined that they fell short of what was expected of management personnel. (Tr. 375:6375:16) Wooden testified that Genesis called him into a fact-finding meeting on May 18, 2017,
(Tr. 21:1-21:4), but in truth, the May 18 discussion was intended for Genesis to provide Wooden
with feedback about its reaction to Azevedo’s outburst during the RCA meeting. (Tr. 368:24369:3) The testimony and documents related to Wooden’s complaints about Azevedo show that
Genesis agreed with Wooden and took prompt corrective action against Azevedo.
Wooden placed significant emphasis on the alleged harassment he faced about shop
inspection forms, but in his answers to the Court’s questions, he admitted he had never been
disciplined for missing an item during a shop inspection. (Tr. 190:13-190:17) The documents
Genesis produced and the testimony supporting them did not reveal any animosity directed at
Wooden. To the contrary, the evidence shows that the company tried to address Wooden’s
concerns. Wooden’s testimony that Keith Herren harassed him, targeted him, and was untruthful
is also contradicted by Wooden’s statements to MSHA Investigator Valentine during his August
29, 2017 interview, in which Wooden made favorable comments about working with Herren at
the time Wooden claimed he was being harassed. (Ex. R-62 pp. 11, 13-14)
Another example of alleged harassment occurred on September 8, 2017, when Rick
Skorcz and Andre Azevedo visited the Caustic Maintenance shop to ask about workplace exam
forms. Wooden exited the forklift he was operating to get the forms, and Azevedo asked if it was
permitted to leave the forklift running while unattended. (Tr. 27:17-28:16) Wooden stated it was
an acceptable practice at Genesis to leave a forklift running while unattended as long as the
Forklift’s tires are chocked. Wooden claimed that this question from Azevedo was harassment,
but he failed to mention that he was not disciplined for leaving the forklift running, or that
Tamara Fennell returned to tell him that Azevedo had checked the procedures and confirmed that
Wooden was correct. (Wooden Dep. 150:8-151:19)
The decision to issue Wooden a first conference letter after the magnet lifting incident
was unrelated to any protected activity by Wooden. Wooden’s probation and termination were
the result of bad judgment and a failure to follow protocols. Wooden knew he could face
termination for any disciplinary infraction going forward. (Tr. 349:19-350:9; 461:23-462:11)
Irrespective of whether the employer’s past actions toward Wooden could be characterized as
responses to his protected activity, standing either alone or considered in the context of prior
history, the second of these two incidents justifies the firing.
The fact that the termination incident involved a second episode of unauthorized use of a
company vehicle was considered an aggravating factor as the company considered its options.
(Tr. 349:19-350:9; 356:20-357:12) Wooden did not put on any evidence to show that there was
any confusion about what was required of him when he signed the DML. (Tr. 531:2-532: 3)
Under the circumstances, one is left in disbelief that Wooden would jeopardize his job by
assuming he had permission to work overtime and to use a company vehicle without permission
a second time.

42 FMSHRC Page 287

The evidence does not convince me that Genesis committed acts of hostility, animus, or
disparate treatment in reaction to Wooden’s intervening protected activity. I conclude that there
was nothing approaching a “continuous escalating series of wrongdoings” against Wooden. See
Sec’y of Labor (MSHA) obo Pappas, v. CalPortland Co., 39 FMSHRC 718, 751 (ALJ, Mar. 31,
2017) (rejecting the Secretary’s assertion that the operator’s actions were a continuous event).
d.

Disparate Treatment

Disparate or inconsistent treatment is another indirect indicium of discrimination.
“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. It has been recognized that “precise equivalence in
culpability between employees” is not required in analyzing a claim of disparate treatment under
traditional employment discrimination law. Pero, 22 FMSHRC at 1361, 1368 (citing McDonald
v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 n.11 (1976)). Rather, the complainant must
simply show that the employees were engaged in misconduct of “comparable seriousness.” Id. at
1368.
Wooden did not present any evidence of disparate treatment by Genesis in connection
with the magnet lift incident. The coaching and counseling given to Fausett and Gamper was
justified by reasonable mitigating circumstances. The trial record shows that Genesis’ treatment
of Wooden was consistent with its treatment of other miners in similar situations, before and
after Wooden’s protected activity. In the eighteen months before Wooden received his first
conference, Genesis issued first conferences to twelve other miners for risk-related behaviors.
(Exs. R-45; R-79) In fact, the one example that Wooden produced during discovery as evidence
of an unpunished injury incident actually resulted in a first conference for risk tolerance similar
to Wooden’s discipline. (Tr. 434:21-436:14) Wooden received the first conference in reaction to
his unsafe behavior, not his protected activity. (Tr. 553:16-554:4) Genesis’ actions toward
Wooden relating to the magnet lift incident were an attempt to alter his behavior and avoid
repeated hazardous conduct in the future.
In the fall of 2017, Genesis was preparing for the effective date of MSHA’s revised rule
on workplace examinations. When the company issued a new policy on completing shop
inspection forms, Wooden interpreted it as being directed at him personally and believed that he
would be exposed to a new degree of scrutiny and perhaps discipline. Wooden placed significant
emphasis on the alleged harassment he faced about shop inspection forms, but in his answers to
the Court’s questions, he admitted he had never been disciplined for missing an item during a
shop inspection. (Tr. 190:13-190:17) In reality, the policy of completing on-shift shop inspection
forms was a company-wide policy and could not have reasonably been adopted for the purpose
of disciplining or punishing Wooden or enforced in such a way that would lead to disparate
treatment against him. Wooden alleged that Herren harassed him and singled him out. Other
witnesses’ testimony confirmed that Herren set the same level of expectations for the entire
crew, as required by MSHA regulations and company procedures. (Tr. 125:25-126:5; Tr. 727:20731:16)

42 FMSHRC Page 288

Wooden’s misuse of a company vehicle does not constitute a protected activity under the
Mine Act, but it is telling that management’s response to this incident was fair and even-handed.
Although Genesis could have immediately terminated Wooden’s employment for towing the
camper, Tamara Fennell, the HR Business Partner for Maintenance, and Kimberly Huber
advocated for issuing a DML to Wooden to maintain consistency with its previous discipline. In
2011, Genesis employee Jarvis Koeven had driven a company truck to Salt Lake City without
authorization. Genesis issued Koeven a DML that included an unpaid suspension and a last
chance agreement for his misuse of a company vehicle. (Tr. 559:23-560:5)7 Like Wooden,
Koeven did not comply with the terms of his last chance agreement and was discharged. (Tr.
469:15-470:22; 560:6-561:8)
The company’s disciplinary records refute Wooden’s and his union’s (reluctant and
unsubstantiated) claims that Wooden was targeted. Wooden failed to provide evidence that he
was treated differently than other employees in similar situations. I cannot find that Wooden was
the recipient of disparate treatment.
e.

Opportunities to Impose Discipline

After Wooden received the first conference for the magnet lifting even, he was not
disciplined again until November, when he towed his camper using the company truck. (Tr.
748:8-749:19; 190:1-20) Genesis had additional opportunities to impose formal discipline, but
opted for coaching and counseling instead. (Tr. 26:1-22; 563:24-564:16; 696:24-698:6; 190:120) 8 Despite Genesis knowing about Wooden’s protected activity, when Wooden’s subsequent
conduct in the second half of 2017 qualified for discipline, including potential termination,
Genesis took a different approach. Wooden could have been disciplined for multiple events: (i)
failing to properly chock a forklift’s tires after he finished operating the forklift; (ii) forgetting to
wear rubber boots while working in the caustic area; and, (iii) throwing away an empty plastic
tool case for a power tool that had been in a Genesis truck Wooden was assigned to drive home
after working overtime. (Tr. 566:15-22; 696:24-697:2; 26:1-27:6; Ex. R-22) Instead of
disciplining Wooden for these instances, Keith Herren provided non-disciplinary coaching and
counseling in an attempt to improve Wooden’s behavior.9
Genesis also exercised leniency with Wooden in October, 2017, after he used the
company vehicle to tow his personal camper. (Tr. 454:24-455:6; 603:10-23; Ex. R-27) Genesis
could have terminated Wooden at that time. (Tr. 465:23-466:15) Firing Wooden would have
7

Koeven had received another DML in 2009 for taking a company truck home without
authorization, but the two-year sunset provision for that DML had expired approximately one
month before Koeven drove a second truck to Salt Lake City.
8

The intervening events were not discipline, as defined by Genesis’ policy and practice,
even though Wooden and other witnesses perceived them as such. (Tr. 440:1-12) In the final
analysis, the intervening events resulted in Wooden being treated in an evenhanded and
consistent manner.
9

Wooden saw this counseling as a form of harassment. (Tr. 26:1-27:5)

42 FMSHRC Page 289

arguably been in compliance with the company’s Positive Performance Program,10 particularly
since Wooden initially lied about his misuse until he realized Genesis already knew the truck had
been seen pulling a camper. (Tr. 602:22-603:9; Ex. R-27) Although some members of
management considered this a termination-level offense, management elected to issue him a
DML. (Tr. 615:5-616:6)
IV. RESPONDENT’S REBUTTAL
Under section 105(c), 30 U.S.C. § 815(c), 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. Pasula, 2 FMSHRC at 2799-800; Turner, 33 FMSHRC
at 1064. Genesis denies that Wooden was terminated in violation of the Mine Act, and argues
instead that any adverse action was not motivated in any part by protected activity. While I have
already found that Wooden failed to provide sufficient evidence to meet his prima facie burden, I
will nevertheless address the Respondent’s rebuttal.
Wooden engaged in several instances of protected activity. The Respondent argues that
Wooden was terminated, not for any reason related to that protected activity, but for his misuse
of a company vehicle on two occasions. Based on the evidence available to me, I find that
Wooden has failed to demonstrate that his probationary status and the termination of his
employment were related to his protected activity. Wooden alleged that the discipline he
received was not fair (Tr. 507:18-25), but that is not an element of a section 105(c) claim. The
company’s decisions were valid business decisions, consistent with long-standing policies and
the collective bargaining agreement with the union.
In analyzing a mine operator’s asserted justification for taking adverse action under the
Pasula-Robinette framework, the inquiry is limited to whether the reasons are based in fact,
whether they actually motivated the operator’s actions, and whether they would have led the
operator to act even if the miner had not engaged in protected activity. Turner, 33 FMSHRC at
1073. The ALJ may not impose his own business judgment as to an operator’s actions, Chacon,
3 FMSHRC at 2516-517, and he may not substitute his own justification for disciplining a miner
over that offered by the operator. Sec’y of Labor on behalf of McGill v. U.S. Steel Mining Co., 23
FMSHRC 981, 989 (Sep. 2001). While the intermediate steps of the Pasula-Robinette test
include shifting burdens, the ultimate burden of persuasion on the question of discrimination
remains with the complainant. Robinette, 3 FMSHRC at 818 n.20.
Respondent’s stated reason for terminating Wooden was plausible and not pretextual for
the following reasons. First, Genesis made the business decision to terminate Wooden for
misusing a Genesis truck twice in four weeks. Second, Wooden could have been discharged for
the first misuse alone. (Tr. Tr. 606:24-607:4; 216:17-216:23; Ex. R-27) Wooden knew the Last
Chance Agreement came with a probationary period in which Genesis could terminate him for
10

Genesis has a progressive disciplinary system, known as the Positive Performance
Policy (“PPP”). (Tr. 341:10-341:22) As an alternative to the PPP, Genesis supervisors may
engage in coaching and counseling of their employees to encourage them to alter subpar
behaviors without resorting to formal discipline. (Tr. 339:13-339:21)

42 FMSHRC Page 290

any misconduct that would normally result in discipline. Third, only four weeks after agreeing to
the LCA, Wooden used another truck without authorization. Not only was this unprotected
activity, it was substantially similar to his previous misconduct. The proximity in time between
his two instances of vehicle misuse stunned Genesis’ HR team, which could not believe Wooden
committed the same unprotected activity he engaged in to receive his DML a second time. (Tr.
624:7-13) Given these facts, I find that Genesis’ reason for terminating Wooden is plausible and
not pretextual.
V. RESPONDENT’S AFFIRMATIVE DEFENSE
If the operator cannot rebut the prima facie case, it may nevertheless defend affirmatively
by proving that it was motivated by the miner’s unprotected activity alone. It is not enough under
section 105(c) for the operator to show that the miner deserved to be fired for engaging in the
unprotected activity. The operator must show that it did, in fact, consider the miner deserving of
discipline for engaging in the unprotected activity alone and that it would have disciplined him in
any event. See Robinette, 3 FMSHRC at 817–18; Pasula, 2 FMSHRC at 2799–800; see also E.
Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642–43 (4th Cir. 1987) (applying PasulaRobinette test).
The Commission has articulated several indicia of legitimate non-discriminatory reasons
for an employer's adverse action. These include evidence of the miner's unsatisfactory past work
record, prior warnings to the miner, past discipline consistent with that meted out to the
complainant, and personnel rules or practices forbidding the conduct in question. Bradley, 4
FMSHRC at 993. The Commission has explained that an affirmative defense should not be
“examined superficially or be approved automatically once offered.” Haro v. Magma Copper
Co., 4 FMSHRC 1935, 1938 (Nov. 1982). In reviewing affirmative defenses, the judge must
“determine whether they are credible and, if so, whether they would have motivated the
particular operator as claimed.” Bradley, 4 FMSHRC at 993. The Commission has stated that,
“pretext may be found . . . where the asserted justification is weak, implausible, or out of line
with the operator's normal business practices.” Sec'y on behalf of Price v. Jim Walter Res., Inc.,
12 FMSHRC 1521, 1534 (Aug. 1990).
As discussed above, I find that Genesis discharged Wooden in response to Wooden’s
unprotected activities. However, even assuming that Wooden’s protected activity partially
motivated Genesis to issue the DML for towing his camper, and then discharge Wooden for once
again using a company truck without authorization four weeks later, Genesis still did not violate
section 105(c) of the Mine Act because it proved each element of its affirmative defense. As
previously discussed, there is sufficient evidence to find that: (i) Genesis would have issued
Wooden a DML and invoked the provisions of the Last Chance Agreement in the absence of his
protected activity; (ii) Genesis was motivated by Wooden’s repeated misuse of company
vehicles; and (iii) these actions alone supported the discipline he received. I find that it is
reasonable to terminate an employee under these circumstances.

42 FMSHRC Page 291

VI. CONCLUSIONS OF LAW
Wooden failed to establish a prima facie case of discrimination under section 105(c) of
the Mine Act. The operator’s stated reasons for discharging Wooden were plausible and not
pretextual. Genesis affirmatively defended its decision to place Wooden on probation and
ultimately terminate his employment. Therefore, based on a thorough review of the record, I
conclude that Wooden failed to prove by a preponderance of the evidence that either the
probation or the termination constituted discrimination in violation of section 105(c) of the Act.
VII. ORDER
Komsan (Troy) Wooden’s complaint and this proceeding are DISMISSED.

/s/ L. Zane Gill
L. Zane Gill
Administrative Law Judge

Distribution:
Komsan (Troy) Wooden, 14 Greve Circle, Rock Springs, WY 82901
komsanwooden@yahoo.com
Erik Dullea, Esq., Ephraim Hintz, Esq., Husch Blackwell LLP, 1801 Wewatta St, Ste 1000,
Denver, CO 80202 erik.dullea@huschblackwell.com ephraim.hintz@huschblackwell.com
/kb

42 FMSHRC Page 292

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9958 / FAX: 202-434-9949

March 31, 2020
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. VA 2013-0291
A.C. No. 44-00068-316647

v.
SUNBELT RENTALS, INC.,
Respondent

Mine: Roanoke Cement Company

DECISION AND ORDER AFTER REMAND
Appearances:

Andrew Tardiff, Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, Virginia, and
Willow E. Fort, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee for Petitioner

Respondent:

Travis W. Vance, Esq., and Collin G. Warren, Fisher & Phillips LLP,
Charlotte, North Carolina, for Respondent

Before:

Judge McCarthy
I. Statement of the Case

This case is before the undersigned after a second remand from the Commission upon a
Petition for Assessment of a Civil Penalty under section 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 815(d) (the Act). Citation No. 8723677 remains at issue and
charges scaffold-erection subcontractor Sunbelt Rentals, Inc. (Sunbelt or Respondent) with a
highly negligent and significant-and-substantial section 104(a) violation of 30 C.F.R.
§ 56.18002(a) after a non-fatal accident occurred on January 8, 2013. At the time of the accident,
§ 56.18002(a) provided that “[a] competent person designated by the operator shall examine each
working place at least once each shift for conditions which may adversely affect safety or health.
The operator shall promptly initiate appropriate action to correct such conditions.” 30 C.F.R. §
56.18002(a) (2013). MSHA proposed a specially-assessed civil penalty of $51,900.
The sole issue currently on remand before the undersigned is the assessment of the
penalty for Citation No. 8723677.

42 FMSHRC Page 293

II. Procedural Background
As the facts and history of this case are detailed in Sunbelt Rentals, Inc., 40 FMSHRC
573 (April 2016) (ALJ) (Sunbelt III), only the relevant facts will be discussed here. The
undersigned initially issued an order granting the Respondent’s Cross-Motion for Summary
Decision. Sunbelt Rentals, Inc., et al., 35 FMSHRC 3208 (Sept. 2013) (ALJ) (Sunbelt I). On July
12, 2016, the Commission vacated the undersigned’s summary decision in favor of all
Respondents and remanded all three dockets. Sunbelt Rentals, Inc., et al., 38 FMSHRC 1619
(July 2016) (Sunbelt II).1
After holding a hearing in Roanoke, Virginia, on May 23-24, 2017—and after careful
review of the record, and the parties’ post-hearing briefs, and accepting the Commission’s
remand as the law of the case—the undersigned found, as relevant here, that Sunbelt violated
30 C.F.R. § 56.18002(a) by failing to adequately examine the seventh level of the preheat tower
at least once during the January 8, 2013 shift, and by failing to promptly initiate corrective action
to remove a falling-material hazard. The undersigned further found that the violation resulted
from Sunbelt’s high negligence. Sunbelt III, 40 FMSHRC at 603-05.
The undersigned assessed a penalty of $23,750 based upon the consideration of the
section 110(i) penalty criteria and the deterrent purposes of the Act.
The Respondent appealed Sunbelt III to the Commission. As relevant here, the
Respondent challenged the findings in Sunbelt III of a violation and that any violation was
significant and substantial and resulted from high negligence.
The Commissioners issued four opinions: one by Commissioners Young and Althen,
presented as the majority opinion; one by Commissioner Jorden, concurring, in part, and
dissenting, in part; one by Chairman Rajkovich, dissenting in part, concurring in part, and joining
in result the opinion of Commissioners Young and Althen only on the issue of negligence; and
one by Commissioner Traynor, concurring with Commissioner Jordan’s opinion. Sunbelt
Rentals, Inc., 2020 WL 508744 (Jan. 2020) (Sunbelt IV). The initial question before the
undersigned is whether, given the fractured opinions of the Commissioners, the undersigned has
any further jurisdiction in this matter.
Under Commission Procedural Rule 69, a judge’s jurisdiction “terminates when his
decision has been issued.” 29C.F.R. § 2700.69(b). Jurisdiction may be returned to a judge after a
remand from the Commission. The contours of such a remand provide the sole and specific
issues that a judge may consider on remand. Boswell v. Nat’l Cement Co., 15 FMSHRC 935, 937
(June 1993). As such, it is paramount for a judge on remand to determine what, if any, majority
opinion dictates how to proceed.
The Supreme Court has stated that “[w]hen a fragmented Court decides a case and no
single rationale explaining the result enjoys the assent” of a majority, “the holding of the Court
may be viewed as that position taken by those Members who concurred in the judgments on the
1

Prior to a hearing after the first remand, two of the three dockets settled, leaving Sunbelt
the sole Respondent.

42 FMSHRC Page 294

narrowest grounds.” Marks v. United States, 430 U.S. 188, 193 (1977) (quoting Gregg v.
Georgia, 428 U.S. 153, 169 n.15 (1976) (opinion of Stewart, Powell, and Stevens, JJ). The Court
of Appeals for the District of Columbia has refined the Marks rule by defining one opinion as
“narrower” than another “only when one opinion is a logical subset of other, broader opinions”
and ruling that “the narrowest opinion must represent a common denominator of the Court’s
reasoning; it must embody a position implicitly approved by” a majority. King v. Palmer, 950
F.2d 771, 781 (D.C. Cir. 1992). The Supreme Court has also held that decisions of administrative
agencies “must be set forth with such clarity as to be understandable” because a reviewing court
“must know what a decision means before the duty becomes [that of the reviewing court] to say
whether it is right or wrong.” Chenery Corp. v. Fed. Water & Gas Corp., 332 U.S. 194, 195-97
(1947) (quoting United States v. Chicago, M., St. P. & P.R. CO, 294 U.S. 499, 511 (1935).
A brief analysis of the opinions in Sunbelt IV, as relevant here, is in order. In their
opinion, Commissioners Young and Althen affirmed the finding of a violation and that finding
that it was significant and substantial. However, Commissioners Young and Althen analyzed the
evidence and found that “[t]he record simply does not support the notion that [an examiner-agent
of Sunbelt] showed an aggravated lack of care.” Sunbelt IV, 2020 WL 508744, at *11 (opinion of
Commissioners Young and Althen). Commissioners Young and Althen concluded that the
violation “was a result of the operator’s ordinary negligence.” Id. at *14. Consequently,
Commissioners Young and Althen voted to remand this matter “for a reassessment of the
penalty” based on ordinary negligence. Id.
Commissioner Jordan, concurring, in part, and dissenting, in part, ruled that there was
substantial evidence to support a finding of high negligence and voted to uphold the
undersigned’s findings in Sunbelt III.
Dissenting in part and concurring in part, Chairman Rajkovich found that there was “no
substantial evidence of a violation” and stated that he would reverse on those grounds. Id. at *17
(opinion of Chairman Rajkovich). However, Chairman Rajkovich also stated that, in the
alternative, he joined Commissioners Young and Althen in finding “the lower level of
negligence.” Id. at *21. Specifically, Chairman Rajkovich stated that “given [his] view that there
was no violation, it would be wholly inconsistent for [him] to find that the record supports the
notion of an aggravated lack of care, warranting a label of ‘high negligence.’” Id.
Finally, Commissioner Traynor wrote a separate opinion concurring with Commissioner
Jordan. In his opinion, Commissioner Traynor opined that, because of the inconsistency between
Chairman Rajkovich’s two positions, there was no valid majority on the issue of negligence.
Taking all of these separate opinions together, there is no common rationale for a finding
of ordinary negligence. The opinion of Commissioners Young and Althen clearly states a
rationale for finding ordinary negligence; however, Chairman Rajkovich does not join in that
reasoning, only in the result. Compare id. at *11-14 (opinion of Commissioners Young and
Althen) (stating the reasoning for finding ordinary negligence in Part III E), with id. at *21
(opinion of Chairman Rajkovich) (joining Part III A and B but not E of the opinion of

42 FMSHRC Page 295

Commissioners Young and Althen).2 Both Commissioners Jordan and Traynor would have
upheld the undersigned’s finding of high negligence. Without a common rationale, there is no
rationale to form as the basis for precedential effect in other cases. United States v. Davis, 825
F.3d 1014, 1016 (9th Cir. 2016).
As there is no common rationale, the next question must be whether, without a common
rationale, there is a valid majority remanding the matter—and returning jurisdiction—to the
undersigned. However, even without a common rationale, a lower court is still bound by the
specific result of a higher court’s decision. See, e.g., id. (“[W]here we can identify no rationale
common to a majority of the Justices, we are bound only by the result.”); King v. Palmer, 950
F.2d at 784. In Sunbelt IV, the result, at least, is clear: Chairman Rajkovich joined the opinion of
Commissioners Young and Althen in the result—a remand solely on the issue of the penalty with
ordinary negligence. Sunbelt IV, 2020 WL 508744, at *16 (opinion of Chairman Rajkovich) (“I
concur in result only in the opinion of Commissioners Young and Althen.”). Accordingly, the
undersigned remains bound by the majority result on ordinary negligence.
Consequently, although lacking a common rationale, a majority of the Commission
validly remanded this case to the undersigned solely to decide the amount of the penalty given
ordinary negligence.
III. Penalty Assessment
It is well established that the Commission Administrative Law Judges assess civil
penalties de novo for violations of the Act. Section 110(i) of the Act delegates to the
Commission the “authority to assess all civil penalties provided in [the] Act.” 30 U.S.C. § 820(i).
The Act delegates the duty of proposing penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a).
When an operator contests the proposed penalty, the Secretary petitions the Commission to
assess the proposed penalty. 29 C.F.R. § 2700.28. The Act requires, that “in assessing civil
monetary penalties, the Commission [ALJ] shall consider” 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
2

Chairman Rajkovich’s opinion, while a pragmatic decision to craft a majority result on
the issue of negligence, adopts two seemingly contradictory positions. As an initial position,
Chairman Rajkovich finds that there was no violation; but as an alternate position, Chairman
Rajkovich finds that, “if [t]here [w]as a [v]iolation, it was [d]ue to [n]o [m]ore than [o]rdinary
[n]egligence.” Sunbelt IV, 2020 WL 508744, at *21 (opinion of Chairman Rajkovich). As
Chairman Rajkovich correctly notes, “[w]hen there is not a finding of violation, the issue of
negligence is never reached.” Id. Chairman Rajkovich also correctly notes that, “given [his] view
that there was no violation, it would be wholly inconsistent for [him] to find that the record
supports the notion of an aggravated lack of care, warranting a label of ‘high negligence.’” Id.
However, it is equally inconsistent to find any level of negligence, including ordinary
negligence, given Chairman Rajkovich’s position that there was no violation.

42 FMSHRC Page 296

person charged in attempting to achieve rapid compliance after
notification of a violation.
30 U.S.C. § 820(i).
In keeping with this statutory requirement, the Commission has held that “findings of fact
on the statutory penalty criteria must be made” by its judges. Sellersburg Stone Co.,
5 FMSHRC 287, 292 (Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984). Once factual findings on
the statutory penalty criteria have been made, a judge’s penalty assessment for a particular
violation is an exercise of discretion, which is bounded by proper consideration of the statutory
criteria and the deterrent purposes of the Act. Id. at 294; Cantera Green, 22 FMSHRC 616, 620
(May 2000). In exercising this discretion to determine the amount of a penalty, the Commission
has recognized that a judge is not bound by the penalty proposed by the Secretary. Spartan
Mining Co., 30 FMSHRC 699, 723 (Aug. 2008).
As the Commission only changed the level of negligence found in Sunbelt III, the
findings and analysis from that decision largely stand with the notable exception of substituting
the undersigned’s finding and analysis in Sunbelt III of high negligence with the Commission’s
findings and “analysis” of ordinary negligence.
When determining a proper assessment for this violation, the undersigned considered:
1) the Respondent’s three prior violations of this standard in the 15 months prior to the accident;
2) the Respondent’s size as a small contractor who worked only 26,667 hours in mines in 2012;
3) the Respondent’s ordinary level of negligence; 4) the presumption—given the Respondent’s
failure to introduce any specific evidence to support or substantiate its inability to pay or any
adverse impact on its ability to remain in business—that the penalty will not have an effect on
the Respondent’s ability to continue in business; 5) the high level of gravity of the significant
and substantial violation; and 6) the timely abatement made in good faith.
Based upon the undersigned’s consideration of the section 110(i) penalty criteria and the
deterrent purposes of the Act, the undersigned assesses a penalty of $17,300.00. This amount is
the result of an independent determination by the undersigned of the statutory criteria and a
penalty amount that would respond to the seriousness of the violation and would deter future
violations. The undersigned did not use the Secretary’s proposed specially assessed penalty as a
baseline or starting point for this determination. American Coal Co. v. FMSHRC, 933 F.3d 723,
728 (D.C. Cir. 2019).

42 FMSHRC Page 297

IV. ORDER
Citation No. 8723677 is MODIFIED by the Commission’s decision in Sunbelt IV to
reduce the level of negligence from high to ordinary. Respondent, Sunbelt Rentals, Inc., is
ORDERED to pay a total civil penalty of $17,300.00 within 30 days of the date of this Decision
and Order.3

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

3

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.

42 FMSHRC Page 298

Distribution:
Charyl C. Blair-Kijewski
U.S. Department of Labor
Office of the Solicitor
201 12th Street South
Suite 401
Arlington, VA 22202
Ali Beydoun
U.S. Department of Labor
Office of the Solicitor
201 12th Street South
Suite 401
Arlington, VA 22202
April Nelson
U.S. Department of Labor
Office of the Solicitor
201 12th Street South
Suite 401
Arlington, VA 22202
Travis W. Vance
Fisher & Phillips LLP
227 West Trade Street
Suite 2020
Charlotte, NC 28202
R. Henry Moore
Fisher & Phillips LLP
Six PPG Place
Suite 830
Pittsburgh, PA 15219

42 FMSHRC Page 299

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

March 31, 2020
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 2020-0203
A.C. No. 46-01318-505388

v.
THE HARRISON COUNTY COAL
COMPANY,
Respondent

Mine: Harrison County Mine

ORDER ACCEPTING APPEARANCE
DECISION APPROVING SETTLEMENT
ORDER TO MODIFY
ORDER TO PAY
Before: Judge McCarthy
This case is before the undersigned upon a 101-citation Petition 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). This docket was created prior to the policy of splitting dockets with excessive amounts
of citations. Under the current policy, this docket would not have been accepted in its current,
voluminous state.
The Secretary of Labor’s Conference and Litigation Representative (“CLR”) filed a
notice of limited appearance with the penalty petition. It is ORDERED that the CLR be accepted
to represent the Secretary. Cyprus Emerald Res. Corp., 16 FMSHRC 2359 (Nov. 1994).
The CLR has filed a motion to approve settlement proposing a reduction in the penalties
from $59,978.00 to $58,109.00. The CLR states that Citations No. 9185453, 9186421, and
9187211 have been vacated. The Secretary’s discretion to vacate a citation or order is not subject
to review. E.g., RBK Constr. Inc., 15 FMSHRC 2099 (Oct. 1993). Citation No. 9186521 remains
unchanged, but the CLR justifies the reduction in penalty by stating there is a legitimate factual
and legal dispute regarding gravity and negligence. The CLR also requests that Citation No.
9186420 be modified to reduce the level of negligence from moderate to low.
The Respondent’s parent company, Murray Energy Holdings Co., filed for Chapter 11
Bankruptcy Protection on October 29, 2019, in the United States Bankruptcy Court for the

42 FMSHRC Page 300

Southern District of Ohio, In re Murray Energy Holdings Co., Case No. 19-56885. As stated in
the settlement motion, some of the citations in this docket are subject to the bankruptcy
proceeding, while other citations are not. As stated below, the Respondent will pay the citations
in accordance with terms of the settlement agreement.
Section 362(a) of the Bankruptcy Code provides for an automatic stay of the
commencement or continuation of any administrative or judicial proceedings against a Chapter
11 Bankruptcy petitioner. 11 U.S.C. § 362(a). An exception to this stay, however, is granted by
§362(b)(4), which exempts from the automatic stay any proceeding by a governmental unit to
enforce its police or regulatory power. 11 U.S.C. §362(b)(4). This exception has been applied to
cases seeking equitable relief and cases concerning monetary damages or penalties. See In re
Commerce Oil Co., 847 F.2d 291, 297 (6th Cir. 1988); United States v. Nicolet, Inc., 857 F.2d
202, 208-10 (3d Cir. 1988); U.S. v. Oil Transport Co., Inc., 172 B.R. 834 (Bankr. E.D. La.
1994); U.S. v. Energy Intern,, Inc., 19 B.R. 1020 (Bankr. S.D. Ohio 1981) (holding that action by
the United States to collect a civil penalty assessed by the Department of the Interior, Office of
Surface Mining, against debtor, for numerous violations of Surface Mining Control and
Reclamation Act of 1977, was one to enforce its regulatory power and thus not stayed by the
debtor's filing of a bankruptcy petition)).
The Commission has held that the Secretary of Labor, Department of Labor, and MSHA
are “government units” within the meaning of 362(b)(4), as the Secretary of Labor brings civil
penalty proceedings in an effort to effectuate and enforce the mandatory safety standards of the
Mine Act. Big Laurel Mining Corp., 37 FMSHRC 1997, 1997-99 (Sept. 2015); Hidden Splendor
Res., Inc., 35 FMSHRC 1548, 1549-50 (June 2013); Hoist Excavating, Inc.¸17 FMSHRC 101,
102 (Feb. 1995); Jim Walter Res., Inc., 12 FMSHRC 1521, 1530 (Aug. 1990).
Although the entry of a money judgment by a governmental unit, if related to its police or
regulatory powers, is not affected by the automatic stay, actual enforcement of such judgment
must take place through the bankruptcy court. In re Weller, 189 B.R. 467, 471 (Bankr. E.D. Wis.
1995); NLRB v. Continental Hagen Corp., 932 F.2d 828, 834 (9th Cir.1991); NLRB v. P.I.E.
Nationwide, Inc., 923 F.2d 506 (7th Cir.1991); Eddleman v. U.S. Dept. of Labor, 923 F.2d 782
(10th Cir.1991); In re Tauscher, 7 B.R. 918 (Bankr. E.D. Wis. 1981).
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 § 110(i) of the Act. The
settlement amounts are as follows:

42 FMSHRC Page 301

Citation No. Assessment Settlement
9185453
$654.00
$0.00
9185454
$514.00 $514.00
9185455
$514.00 $514.00
9185456
$405.00 $405.00
9185457
$230.00 $230.00
9185979
$372.00 $372.00
9185458
$214.00 $214.00
9185459
$214.00 $214.00
9185706
$250.00 $250.00
9186408
$604.00 $604.00
9186409
$372.00 $372.00
9186410
$405.00 $405.00
9186411
$121.00 $121.00
9186412
$142.00 $142.00
9186413
$558.00 $558.00
9189323
$474.00 $474.00
9185707
$121.00 $121.00
9186414
$121.00 $121.00
9186415
$474.00 $474.00
9186416
$474.00 $474.00
9186417
$250.00 $250.00
9186418 $1,852.00 $1,852.00
9186419 $2,763.00 $2,763.00
9189324
$474.00 $474.00
9189325
$121.00 $121.00
9189326
$708.00 $708.00
9189327
$270.00 $270.00
9185708
$832.00 $832.00
9185709 $6,148.00 $6,148.00
9186420
$405.00 $181.00
9186421
$250.00
$0.00
9186422
$902.00 $902.00
9186423
$832.00 $832.00
9185710
$121.00 $121.00
9185711 $2,763.00 $2,763.00
9186424
$181.00 $181.00
9189331
$121.00 $121.00
9189332
$250.00 $250.00
9185712
$604.00 $604.00

Citation No. Assessment Settlement
9185713
$344.00 $344.00
9185714 $2,550.00 $2,550.00
9185715
$121.00 $121.00
9186425
$154.00 $154.00
9186426
$558.00 $558.00
9186427
$319.00 $319.00
9186428
$121.00 $121.00
9186429
$250.00 $250.00
9186430 $1,345.00 $1,345.00
9189333
$154.00 $154.00
9189334
$474.00 $474.00
9186431
$604.00 $604.00
9189336
$121.00 $121.00
9185716
$214.00 $214.00
9186434 $2,993.00 $2,993.00
9186435 $2,353.00 $2,353.00
9186436
$344.00 $344.00
9186437
$121.00 $121.00
9186438
$474.00 $474.00
9186439
$474.00 $474.00
9185717
$181.00 $181.00
9185718
$214.00 $214.00
9185719
$372.00 $372.00
9186520
$405.00 $405.00
9186521 $1,057.00 $688.00
9186522
$604.00 $604.00
9182135
$250.00 $250.00
9182136
$121.00 $121.00
9186523
$121.00 $121.00
9186524
$121.00 $121.00
9186525
$121.00 $121.00
9189342
$604.00 $604.00
9189343
$372.00 $372.00
9186480
$604.00 $604.00
9186527 $1,345.00 $1,345.00
9186528
$181.00 $181.00
9186529
$154.00 $154.00
9186530
$154.00 $154.00
9186532
$250.00 $250.00
3

42 FMSHRC Page 302

Citation No. Assessment Settlement
9186533
$214.00
$214.00
9186481 $1,345.00 $1,345.00
9186535
$474.00
$474.00
9187211
$372.00
$0.00
9187212
$474.00
$474.00
9186482
$604.00
$604.00
9189345
$372.00
$372.00
9189346
$372.00
$372.00
9189347
$121.00
$121.00
9189348 $1,242.00 $1,242.00
9189349
$121.00
$121.00
9186483
$270.00
$270.00

Citation No. Assessment Settlement
9186484 $2,550.00 $2,550.00
9186538
$832.00
$832.00
9186539
$168.00
$168.00
9186540
$319.00
$319.00
9186541
$121.00
$121.00
9189350
$372.00
$372.00
9189351
$474.00
$474.00
9189352
$121.00
$121.00
9189353
$121.00
$121.00
9186545
$270.00
$270.00
9189354
$250.00
$250.00
TOTAL $59,978.00 $58,109.00

WHEREFORE, the motion for approval of settlement is GRANTED.
It is ORDERED that Citation No. 9186420 be MODIFIED to reduce the level of
negligence from moderate to low.
It is further ORDERED that the operator pay a total penalty of $58,109.00 pursuant to
the terms of the settlement agreement.1

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

1

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.
42 FMSHRC Page 303

Distribution:
Chris A. Weaver
U.S. Department of Labor
MSHA 604 Cheat Road
Morgantown, WV 26508
Wm. Allen McGilton
Murray Energy Corporation
46226 National Road
St. Clairsville, OH 43950
/ztb

42 FMSHRC Page 304