May and June 2019
TABLE OF CONTENTS

COMMISSION ORDERS
05-02-19

RAIN FOR RENT

WEST 2016-730-M

Page 243

05-22-19

INDUSTRIAL PROCESS
EQUIPMENT CONSTRUCTORS

LAKE 2018-302-M

Page 245

05-22-19

MACH MINING, LLC

LAKE 2018-304

Page 248

05-22-19

PEABODY TWENTYMILE MINING
LLC

WEST 2018-410-M

Page 251

05-22-19

NEW GOLD NEVADA, INC.

WEST 2018-430-M

Page 254

05-22-19

UPLAND ROCK, INC.

WEST 2018-452-M

Page 258

05-22-19

CANYON FUEL COMPANY, LLC

WEST 2019-270

Page 261

05-22-19

KINGSTON MINING, INC.

WEVA 2018-480

Page 264

05-22-19

WOLF RUN MINING, LLC

WEVA 2018-622

Page 267

06-06-19

AMERICAN AGGREGATES OF
MICHIGAN, INC.

LAKE 2018-0340

Page 270

06-19-19

STONE ZONE

CENT 2018-412-M

Page 272

i

ADMINISTRATIVE LAW JUDGE DECISIONS
05-20-19

PEABODY MIDWEST MINING,
LLC

LAKE 2016-0305

Page 279

05-24-19

YAHARA MATERIALS, INC.

LAKE 2019-0025

Page 309

06-11-19

CONSOL BUCHANAN MINING
COMPANY, LLC

VA 2012-0042

Page 312

06-24-19

HOPEDALE MINING LLC

LAKE 2019-0149

Page 322

06-27-19

PEABODY MIDWEST MINING,
LLC

LAKE 2018-0159

Page 340

06-27-19

CONSOL PENNSYLVANIA COAL
COMPANY, LLC

PENN 2018-0116

Page 357

ADMINISTRATIVE LAW JUDGE ORDERS
05-22-19

THE MONONGALIA COUNTY
COAL COMPANY, successor to
CONSOLIDATION COAL
COMPANY

WEVA 2015-0074

Page 377

05-24-19

AMERICAN AGGREGATES OF
MICHIGAN, INC.

LAKE 2018-0340

Page 382

ii

Review was granted in the following case during the month of June 2019:
Secretary of Labor v. American Aggregates of Michigan, Inc., Docket No. LAKE 2018-340
(Judge McCarthy, May 24, 2019)

No case review was denied during the months of May and June 2019.

iii

COMMISSION ORDERS

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

May 2, 2019
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. WEST 2016-730-M

RAIN FOR RENT
BEFORE: Rajkovich, Chairman; Jordan, Young, Althen, and Traynor, Commissioners
ORDER
BY THE COMMISSION:
On July 31, 2018, the Commission issued a decision in the captioned civil penalty
proceeding in which it affirmed the decision of the Administrative Law Judge and the citations at
issue. 40 FMSHRC 976 (Jul. 2018). Rain For Rent thereafter filed a petition for reconsideration
with the Commission, stating that the matter should be reconsidered because the Judge had not
been properly appointed to his position in accordance with the Appointments Clause of the U.S.
Constitution, U.S. Const. Art. II § 2, cl. 2.1 On August 30, 2018, the Commission issued an order
denying reconsideration. Rain For Rent then appealed both of the Commission’s decisions to the
United States Court of Appeals for the D.C. Circuit.
Before the D.C. Circuit, Rain For Rent represented that it intended to argue to the Court
that the Commission Judge had not been appointed in accordance with the requirements of the
U.S. Constitution as explained in Lucia v. SEC, 138 S. Ct. 2044 (2018). The Secretary joined
Rain For Rent in filing a joint motion to remand the case to the Commission for a new hearing.

1

On July 31, 2018, the same day that the Commission issued its decision on this matter,
the United States Court of Appeals for the Sixth Circuit vacated and remanded a separate matter
for a new hearing before a constitutionally appointed Administrative Law Judge. Jones Bros.,
Inc., v. Sec’y of Labor, 898 F.3d 669 (6th Cir. 2018).

41 FMSHRC Page 243

On March 22, 2019, the D.C. Circuit granted the parties’ motion for remand, setting aside
the Commission’s July 31 and August 30 decision and order and “remanded [the case] to the
[Commission] for a new hearing, in accordance with Lucia v. SEC, 138 S. Ct. 2044 (2018).”
Western Oilfields Supply Co., d/b/a Rain For Rent v. FMSHRC, No. 18-1269, slip op. at 1 (D.C.
Cir. Mar. 22, 2019).
Accordingly, the Commission hereby remands this matter to the Acting Chief
Administrative Law Judge so that it may be reassigned to a different Judge for a hearing
consistent with the D.C. Circuit’s instructions.

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

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

41 FMSHRC Page 244

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

May 22, 2019
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 2018-302-M
A.C. No. 20-00038-463276

v.
INDUSTRIAL PROCESS EQUIPMENT
CONSTRUCTORS

BEFORE: Rajkovich, Chairman; Jordan, Young, Althen, and Traynor, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On July 2, 2018, the Commission received from Industrial
Process Equipment Constructors (“Industrial Process”) a motion seeking to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on April 30, 2018, and became a
final order of the Commission on May 30, 2018.

41 FMSHRC Page 245

Industrial Process asserts that its failure to timely contest was the result of a typography
error during informal negotiations with an MSHA representative. After MSHA issued Citation
No. 8952382 to Industrial Process on March 19, 2018, Industrial Process requested an informal
conference with a local MSHA representative in order to seek modifications to the cited safety
standard. On May 8, 2018, the requested conference was held. As a result of the conference,
changes were made to the citation. However, Industrial Process asserts that it typed the wrong
citation number in the subject line of the email in which the May 8, 2018 conference was
requested. Industrial Process asserts that, as a result of this typography mistake, the wrong
citation was modified in MSHA records. By the time the mistake was discovered, the deadline
for contesting the citation had passed. Industrial Process paid the penalty in full. Industrial
Process filed a Motion to Reopen on June 29, 2018, 30 days after the Proposed Penalty
Assessment became a final order of the Commission. The Secretary does not oppose the request
to reopen.
Having reviewed Industrial Process’s request and the Secretary’s response, we find that
the operator’s failure to timely contest the assessment was the result of a mistake. In the interest
of justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

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

41 FMSHRC Page 246

Distribution:
Ralph Zempel
IPEC Safety Director
Industrial Process Equipment Constructors
2905 M 68
Rogers City, MI 49779-9674
Ali Beydoun, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Acting Chief Administrative Law Judge Jacqueline Bulluck
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

41 FMSHRC Page 247

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

May 22, 2019
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 2018-304
A.C. No. 11-03141-459475

v.
MACH MINING, LLC

BEFORE: Rajkovich, Chairman; Jordan, Young, Althen, and Traynor, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On July 3, 2018, the Commission received from Mach Mining,
LLC (“Mach Mining”) a motion seeking to reopen a penalty assessment that had become a final
order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on March 5, 2018, and became a
final order of the Commission on April 4, 2018. MSHA mailed a delinquency notice to Mach
Mining on June 15, 2018.

41 FMSHRC Page 248

Mach Mining asserts that its failure to timely contest the Proposed Penalty Assessment
was caused by inadvertence by its Assistant Corporate Safety Director. Mach Mining personnel
reviewed the Proposed Penalty Assessment and decided to contest six of the twenty-seven
citations and pay the penalties for the remaining citations. However, the Assistant Corporate
Safety Director, who was responsible for contesting or paying the various citations, failed to do
so. According to an affidavit signed by the Assistant Corporate Safety Director, he realized his
oversight when Mach Mining received a delinquency notice from MSHA on June 28, 2018. He
immediately contacted outside counsel, who filed a Motion to Reopen on July 3, 2018, within a
week of receipt of the delinquency notice. In its Motion, Mach Mining states that it has changed
its contest procedures in order to prevent future errors. The Secretary does not oppose the request
to reopen.
Having reviewed Mach Mining’s request and the Secretary’s response, we find that the
operator’s failure to timely contest the assessment was the result of inadvertence. In the interest
of justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

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

41 FMSHRC Page 249

Distribution:
Christopher Pence, Esq.
Hardy Pence PLLC
P.O. Box 2548
Charleston, WV 25329-2548
Ali Beydoun, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Acting Chief Administrative Law Judge Margaret Miller
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

41 FMSHRC Page 250

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

May 22, 2019
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2018-410-M
A.C. No. 05-03836-461390

v.
PEABODY TWENTYMILE MINING LLC

BEFORE: Rajkovich, Chairman; Jordan, Young, Althen, and Traynor, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On May 24, 2018, the Commission received from Peabody
Twentymile Mining LLC (“Peabody”) a motion seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on April 7, 2018, and became a
final order of the Commission on May 7, 2018.

41 FMSHRC Page 251

Peabody asserts that its failure to timely contest the proposed assessment was the result of
inadvertence and mistake by company personnel. Peabody asserts that, on April 17, 2018, its
Compliance Manager drafted a request directing outside counsel to file a contest of the proposed
assessment. However, the Compliance Manager never sent the request to outside counsel.
On May 23, 2018, the Compliance Manager discovered his mistake and immediately
contacted outside counsel. A Motion to Reopen was filed the next day, less than three weeks
after the Proposed Penalty Assessment had become a final order of the Commission. The
Secretary does not oppose the request to reopen.
Having reviewed Peabody’s request and the Secretary’s response, we find that the
operator’s failure to timely contest the assessment was the result of mistake and inadvertence on
the part of Peabody’s personnel. In the interest of justice, we hereby reopen this matter and
remand it to the Chief Administrative Law Judge for further proceedings pursuant to the Mine
Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with
Rule 28, the Secretary shall file a petition for assessment of penalty within 45 days of the date of
this order. See 29 C.F.R. § 2700.28.

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

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

41 FMSHRC Page 252

Distribution:
Christopher G. Peterson, Esq.
Jackson Kelly PLLC
1099 18th St., Suite 2150
Denver, CO 80202-1908
Ali Beydoun, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Acting Chief Administrative Law Margaret Miller
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

41 FMSHRC Page 253

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

May 22, 2019
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2018-430-M
A.C. No. 26-02572-457995

v.
NEW GOLD NEVADA, INC.

BEFORE: Rajkovich, Chairman; Jordan, Young, Althen, and Traynor, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On June 11, 2018, the Commission received from New Gold
Nevada, Inc. (“New Gold”) a motion seeking to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on February 5, 2018, and
became a final order of the Commission on March 7, 2018.

41 FMSHRC Page 254

New Gold asserts that it failed to timely contest the Proposed Penalty Assessment
because it was awaiting a response from MSHA in regards to a conference held on January 4,
2018. After receiving the citations, New Gold requested an informal conference call with a local
MSHA representative in order to negotiate modifications to the citations before penalties were
assessed. New Gold asserts that it emailed inquiries concerning its proposed modifications to
MSHA on January 24, 2018, February 27, 2018, and March 8, 2018, but did not receive a
response until March 9, 2018, after the Proposed Penalty Assessment had become a final order of
the Commission.1 New Gold acknowledges the receipt of the Proposed Penalty Assessment, but
states that it purposely did not respond due to what it thought were ongoing negotiations with the
Secretary.2 The Secretary does not oppose the request to reopen, but urges the operator to take
steps to ensure that future penalty contests are timely filed.

1

In its March 9, 2018 response, MSHA forwarded New Gold an email dated January 12,
2018, which contained MSHA’s original response to the January 4, 2018 conference call. New
Gold maintains that is has no record of receiving the January 12, 2018 email. It is unclear why
MSHA did not promptly respond to New Gold’s subsequent attempts to resolve the confusion.
2

We note that, while parties are free to engage in pre-contest negotiations, such
negotiations do not toll the deadline for an operator to contest proposed penalties. See 30 U.S.C.
§ 815(a).

41 FMSHRC Page 255

Having reviewed New Gold’s request and the Secretary’s response, we find that the
operator’s failure to timely contest the assessment was the result of the operator’s inadvertence.
In the interest of justice, we hereby reopen this matter and remand it to the Chief Administrative
Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural
Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a
petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R.
§ 2700.28.

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

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

41 FMSHRC Page 256

Distribution:
Melodie Devlin-Joyal
Corporate Secretary
New Gold Nevada, Inc.
8023 Enterprise St.
Burnaby, BC V5A 1V5
Ali Beydoun, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Acting Chief Administrative Law Judge Margaret Miller
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

41 FMSHRC Page 257

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

May 22, 2019
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2018-452-M
A.C. No. 04-05857-458100

v.
UPLAND ROCK, INC.

BEFORE: Rajkovich, Chairman; Jordan, Young, Althen, and Traynor, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On June 22, 2018, the Commission received from Upland
Rock, Inc. (“Upland”) a motion seeking to reopen a penalty assessment that had become a final
order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on February 5, 2018, and
became a final order of the Commission on March 7, 2018.
Upland asserts that its failure to timely contest the Proposed Penalty Assessment was the
result of an employee’s mistake. Upon receipt of the Proposed Penalty Assessment, an Upland
employee stored the document in his personal binder without notifying any other Upland

41 FMSHRC Page 258

personnel. After receiving a delinquency notice from MSHA dated May 18, 2018, the employee
realized his mistake and came forward with the Proposed Penalty Assessment. Upland did not
state when it received this delinquency notice. However, Upland filed its Motion to Reopen with
the Commission on June 18, 2018, which could not have been more than 30 days from its receipt
of the delinquency notice. The Secretary does not oppose the request to reopen, but urges the
operator to take steps to ensure that future penalty contests are timely filed.
Having reviewed Upland’s request and the Secretary’s response, we find that the
operator’s failure to timely contest the assessment was the result of an Upland employee’s
mistake. In the interest of justice, we hereby reopen this matter and remand it to the Chief
Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the
Secretary shall file a petition for assessment of penalty within 45 days of the date of this order.
See 29 C.F.R. § 2700.28.

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

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

41 FMSHRC Page 259

Distribution:
Randy Rogers
Supervisor
Upland Rock, Inc.
8780 19th St., Suite 373
Alta Loma, CA 91701-4608
Ali Beydoun, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Acting Chief Administrative Law Judge Margaret Miller
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

41 FMSHRC Page 260

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

May 22, 2019
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2019-270
A.C. No. 42-01890-480720

v.
CANYON FUEL COMPANY, LLC

BEFORE: Rajkovich, Chairman; Jordan, Young, Althen, and Traynor, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On April 11, 2019, the Commission received from Canyon Fuel
Company, LLC (“Canyon”) a motion seeking to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on January 15, 2019, and
became a final order of the Commission on February 14, 2019.
Canyon asserts that its safety manager mailed a contest form for Citation Nos. 8537411
and 8537412 to the MSHA Penalty Compliance Office in January 2019. However, Canyon

41 FMSHRC Page 261

provided no proof that the safety manager mailed the contest form. Canyon further asserts that it
mailed payment for the uncontested citations to MSHA’s Payment Office on or around January
31, 2019. However, while MSHA recorded a payment for the contested citations on February 20,
2019, it has no record of receiving the operator’s contest. After Canyon received a delinquency
notice from MSHA on April 1, 2019, it filed a Motion to Reopen within ten days. The Secretary
does not oppose the request to reopen.
Having reviewed Canyon’s request and the Secretary’s response, we find that the
operator’s failure to timely contest the assessment was the result of mistake or inadvertence. In
the interest of justice, we hereby reopen this matter and remand it to the Chief Administrative
Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural
Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a
petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R.
§ 2700.28.

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

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

41 FMSHRC Page 262

Distribution:
R. Henry Moore, Esq.
Fisher & Phillips LLP
One Oxford Centre
301 Grant St., Suite 4300
Pittsburgh, PA 15219-1407
Ali Beydoun, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Acting Chief Administrative Law Judge Margaret Miller
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

41 FMSHRC Page 263

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

May 22, 2019
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2018-480
A.C. No. 46-08625-456831

v.
KINGSTON MINING, INC.

BEFORE: Rajkovich, Chairman; Jordan, Young, Althen, and Traynor, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On May 18, 2018, the Commission received from Kingston
Mining, Inc. (“Kingston”) a motion seeking to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on January 19, 2018, and
became a final order of the Commission on February 20, 2018.

41 FMSHRC Page 264

Kingston asserts that its failure to timely contest the Proposed Penalty Assessment was
the result of human error in the use of its case management system. Kingston states that it uses a
software program to manage citations. The software alerts Kingston of the contest filing
deadlines for each citation. However, Kington asserts that a safety analyst inadvertently entered
the wrong case number into the company safety database. When inputting the relevant
information for this case, she mislabeled the case number as “454631” rather than “456831.”
Thus, the system did not alert Kingston of the need to contest the citations. On or about May 11,
2018, Kingston received a delinquency notice from MSHA dated May 4, 2018. Kingston filed a
Motion to Reopen on May 18, 2018, about one week after it received the delinquency notice.
The Secretary does not oppose the request to reopen.
Having reviewed Kingston’s request and the Secretary’s response, we find that the
operator’s failure to timely contest the assessment was the result of a clerical mistake which was
promptly addressed. In the interest of justice, we hereby reopen this matter and remand it to the
Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the
Secretary shall file a petition for assessment of penalty within 45 days of the date of this order.
See 29 C.F.R. § 2700.28.

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

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

41 FMSHRC Page 265

Distribution:
Christopher Pence, Esq.
Hardy Pence PLLC
P.O. Box 2548
Charleston, WV 25329-2548
Ali Beydoun, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Acting Chief Administrative Law Judge Margaret Miller
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

41 FMSHRC Page 266

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

May 22, 2019
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2018-622
A.C. No. 46-04168-467185

v.
WOLF RUN MINING, LLC

BEFORE: Rajkovich, Chairman; Jordan, Young, Althen, and Traynor, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On August 8, 2018, the Commission received from Wolf Run
Mining, LLC (“Wolf Run”) a motion seeking to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on June 19, 2018, and became a
final order of the Commission on July 19, 2018.
Wolf Run asserts that it held a conference with an MSHA representative to discuss the
citations before penalties had been proposed. Following this conference, Wolf Run told its

41 FMSHRC Page 267

outside counsel that it intended to contest the citations once penalties were proposed. However,
Wolf Run asserts that internal miscommunication resulted in the penalties inadvertently being
timely paid, rather than contested. On August 6, 2018, Wolf Run discovered its mistake while
responding to inquiries from mine management and immediately contacted outside counsel, who
filed a Motion to Reopen less than three weeks after the Proposed Penalty Assessment had
become a final order of the Commission. The Secretary does not oppose the request to reopen,
but urges the operator to take steps to ensure that future penalty contests are timely filed.
Having reviewed Wolf Run’s request and the Secretary’s response, we find that the
operator’s failure to timely contest the assessment was the result of a communication mistake
regarding whether management intended to contest or pay the penalties. In the interest of justice,
we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part
2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of
penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

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

41 FMSHRC Page 268

Distribution:
Michael T. Cimino, Esq.
Jackson Kelly PLLC
P.O. Box 553
Charleston, WV 25322-0553
Ali Beydoun, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Acting Chief Administrative Law Judge Margaret Miller
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

41 FMSHRC Page 269

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

June 6, 2019

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

Docket No. LAKE 2018-0340

v.
AMERICAN AGGREGATES OF
MICHIGAN, INC.

ORDER

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012). On February 14, 2019, the Administrative Law Judge issued a decision
denying a motion to approve settlement. On May 24, 2019, the Judge issued an Order Accepting
Appearance, Rejecting Settlement, Recusing Undersigned, Requesting Reassignment, and
Certifying Case for Interlocutory Review.

41 FMSHRC Page 270

Commission Procedural Rule 76(a), 29 C.F.R. § 2700.76(a), provides that interlocutory
review is not a matter of right but of the sound discretion of the Commission. In addition, under
Rule 76(a)(2), a majority of Commission members must conclude that the Judge's interlocutory
ruling involves a controlling question of law and that immediate review may materially advance
the final disposition of the proceeding.

This standard having been satisfied, we hereby grant review. The question on review is
whether the Judge abused his discretion in denying the Secretary’s motion to approve settlement.
Briefing is stayed pending further order of the Commission.

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

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

41 FMSHRC Page 271

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

June 19, 2019
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Docket No. CENT 2018-412-M
A.C. No. 41-04718-456977
Docket No. CENT 2019-237-M
A.C. No. 41-04718-361889

v.
STONE ZONE

Docket No. CENT 2019-238-M
A.C. No. 41-04718-367048
Docket No. CENT 2019-239-M
A.C. No. 41-04718-389316
Docket No. CENT 2019-240-M
A.C. No. 41-04718-392027
Docket No. CENT 2019-241-M
A.C. No. 41-04718-399316
Docket No. CENT 2019-242-M
A.C. No. 41-04718-399406
Docket No. CENT 2019-243-M
A.C. No. 41-04718-401278
Docket No. CENT 2019-244-M
A.C. No. 41-04718-410608
Docket No. CENT 2019-245-M
A.C. No. 41-04718-429077
Docket No. CENT 2019-246-M
A.C. No. 41-04718-438742
Docket No. CENT 2019-247-M
A.C. No. 41-04718-454777

BEFORE: Rajkovich, Chairman; Jordan, Young, Althen, and Traynor, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On August 8, 2018, the Commission received from Stone Zone

41 FMSHRC Page 272

a motion seeking to reopen twelve penalty assessments that had become final orders of the
Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).1
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
The Secretary asserts that the proposed assessments in Docket Nos. CENT 2019-237-M,
CENT 2019-238-M, CENT 2019-239-M, CENT 2019-240-M, CENT 2019-241-M, CENT 2019242-M, CENT 2019-243-M, CENT 2019-244-M, CENT 2019-245-M, and CENT 2019-246-M
were delivered to the operator’s address of record and became final orders between October 22,
2014 and July 2017, when Stone Zone failed to contest the proposed penalties after 30 days.
Rule 60(c) of the Federal Rules of Civil Procedure provides that a Rule 60(b) motion
shall be made within a reasonable time, and for reasons of mistake, inadvertence, or excusable
neglect, not more than one year after the judgment, order, or proceeding was entered or taken.
Fed. R. Civ. P. 60(c). The motion to reopen was filed more than one year after the
aforementioned cases became final orders. Therefore, under Rule 60(c), Stone Zone’s motion is
untimely as it pertains to those cases. J S Sand & Gravel, Inc., 26 FMSHRC 795, 796 (Oct.
2004).
However, the motion to reopen was timely filed in regard to Docket Nos. CENT 2018412-M and CENT 2019-247-M. The Secretary states that in CENT 2019-247-M the proposed
assessment was delivered on January 13, 2018 and became a final order of the Commission on
February 12, 2018. According to the Secretary, in CENT 2018-412-M, the proposed assessment
was delivered on February 17, 2018 and became a final order of the Commission on March 19,
2018.
1

For the limited purpose of addressing these motions to reopen, we hereby consolidate
docket numbers CENT 2018-412-M, CENT 2019-237-M, CENT 2019-238-M, CENT 2019-239M, CENT 2019-240-M, CENT 2019-241-M, CENT 2019-242-M, CENT 2019-243-M, CENT
2019-244-M, CENT 2019-245-M, CENT 2019-246-M, and CENT 2019-247-M, involving
similar procedural issues. 29 C.F.R. § 2700.12.

41 FMSHRC Page 273

Stone Zone asserts that it received all twelve of the proposed penalty assessments from
the Department of Labor’s Mine Safety and Health Administration (“MSHA”) but that it filed
them away with the intention to contest and/or pay all of the penalties at a later date. Stone Zone
further avers that its failure to timely contest was not a result of “indifference, or inattention,
inadequate or unreliable office procedures of general carelessness.” Rather, Stone Zone
maintains that such failure was a product of not understanding that there was a “30 day window”
for contesting proposed penalties.
The Secretary opposes the request to reopen, arguing that Stone Zone has failed to
provide a valid reason to excuse its delinquency. The Secretary notes that Stone Zone admits that
it received the proposed penalties and that MSHA inspectors specifically advised the operator to
contest the penalties. Moreover, the Secretary implies that Stone Zone is not acting in good faith,
only filing a motion to reopen after receiving a citation for failing to pay its penalties and a
subsequent withdrawal order for substantial delinquent payments. The Secretary further argues
that, in seeking to reopen these cases, Stone Zone is attempting to rescind on a recent agreement
with MSHA to pay off its delinquent penalties in a series of monthly installments.
In regards to good faith, it is well recognized in federal jurisprudence that the issue of
whether the movant acted in good faith is an important factor in determining the existence of
excusable neglect. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395
(1993); FG Hemisphere Assocs., LLC v. Democratic Republic of Congo, 447 F.3d 835, 838
(D.C. Cir. 2006). Likewise, the Commission has recognized that a movant’s good faith, or lack
thereof, is relevant to a determination of whether the movant has demonstrated mistake,
inadvertence, surprise or excusable neglect within the meaning of Rule 60(b)(1) of the Federal
Rules of Civil Procedure. Lone Mountain Processing, Inc., 35 FMSHRC 3342, 3346 (Nov.
2013); M.M. Sundt Constr. Co., 8 FMSHRC 1269, 1271 (Sept. 1986); Easton Constr. Co., 3
FMSHRC 314, 315 (Feb. 1981). Some of the factors relevant to the good faith analysis are the
number of delinquent penalties outstanding, the period of time the delinquent penalties accrued,
and the seriousness of the citations underlying the aforementioned penalties. Kentucky Fuel
Corp., 38 FMSHRC 632, 633 (Apr. 2016). See also Oak Grove Res. LLC, 33 FMSHRC 1130,
1132 (June 2011).
According to the Installment Payment Agreement that Stone Zone entered into on July 3,
2018, Stone Zone owed MSHA a total amount of $214,756.95 in delinquent penalties, interest,
and fees for civil penalties issued between 2010 and 2018. Of the 12 cases involved in the
present motion to reopen, Stone Zone is seeking to reopen 58 citations and orders, 14 of which
were issued under section 104(d) of the Mine Act.2 In addition, we note that Stone Zone only
filed a motion to reopen after MSHA issued a citation for failure to pay its penalties and section
104(b) withdrawal order for delinquent payments. Moreover, Stone Zone had already entered
into an agreement with MSHA to pay all outstanding penalties a month before filing the motion
to reopen.
These facts are clearly not consistent with an operator acting in good faith. The operator’s
record indicates that it has repeatedly disregarded final penalty assessments for many years. The
2

The orders issued pursuant to section 104(d) were for unwarrantable failure to comply
with mandatory health and safety standards. See 30 U.S.C. § 814(d).

41 FMSHRC Page 274

large amount of penalties, which had accumulated in the years preceding the request to reopen,
should have informed the operator of the need to be more attentive to proposed assessments from
MSHA. Therefore, the operator should have taken precautions, due to the serious violations and
high penalties at issue, to timely contest the proposed assessment.
Finally, the Commission has made it clear that where a failure to contest a proposed
assessment results from an inadequate or unreliable internal processing system, the operator has
not established grounds for reopening the assessment. Shelter Creek Capital, LLC, 34 FMSHRC
3053, 3054 (Dec. 2012); Oak Grove Res., LLC, 33 FMSHRC 103, 104 (Feb. 2011); Double
Bonus Coal Co., 32 FMSHRC 1155, 1156 (Sept. 2010); Highland Mining Co., 31 FMSHRC
1313, 1315 (Nov. 2009); Pinnacle Mining Co., 30 FMSHRC 1066, 1067 (Dec. 2008); Pinnacle
Mining Co., 30 FMSHRC 1061, 1062 (Dec. 2008). It is the operator’s responsibility to read any
information provided by MSHA in connection with a proposed assessment. In particular, the
Secretary attaches to each proposed penalty a document titled Notice of Contest Rights and
Instructions which clearly states in its first sentence that, “[p]ursuant to 30 CFR 100.7, you have
30 days from receipt of this proposed assessment to either (1) pay the penalty or penalties . . . or
(2) notify MSHA that you wish to contest some of all of the proposed assessments. . . .”
Here, it is clear that Stone Zone operated for years without a process in place to review
and contest proposed penalties. Rather, it appears that it was the operator’s longstanding practice
to simply file away the proposed assessments without reviewing the penalties or the Notice of
Contest Rights and Instructions which accompany each assessment.

41 FMSHRC Page 275

We have reopened final orders where an operator, though unfamiliar with contesting
procedures, demonstrated a genuine interest to understand its obligations and liabilities under the
Mine Act and act on such obligations. However, Stone Zone has provided no evidence that it
attempted to follow up or seek clarification from MSHA or the Department of Treasury as to the
deadline to contest the penalties. It strains credibility to believe that Stone Zone could operate for
years under the mistaken belief that it could contest MSHA penalties years after they were
proposed.
Accordingly, we find that the operator has failed to demonstrate an entitlement to
extraordinary relief, and thus we deny Stone Zone’s motion.

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

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

41 FMSHRC Page 276

Distribution:
Jim Chadwick
Stone Zone Quarry
30 Midnight Ln.
Georgetown, TX 28626
Ali Beydoun, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Acting Chief Administrative Law Judge Margaret Miller
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

41 FMSHRC Page 277

ADMINISTRATIVE LAW JUDGE DECISIONS

41 FMSHRC Page 278

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE N. W., SUITE 520N
WASHINGTON, D.C. 20004-1710
Telephone No.: 202-434-9933
Telecopier No.: 202-434-9949

May 20, 2019
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. LAKE 2016-0305
A.C. No. 12-02295-409606

v.
PEABODY MIDWEST MINING, LLC
Respondent

Francisco Underground Pit

DECISION
Appearances:

Edward V. Hartman, Esq., Office of the Solicitor, U.S. Department of
Labor, Chicago, Illinois, for the Petitioner
Arthur Wolfson, Fisher Phillips LLP, Pittsburgh, Pennsylvania, for the
Respondent

Before:

Judge Moran

In this proceeding 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 Secretary alleges that
the Respondent, Peabody Midwest Mining, LLC, violated 30 C.F.R. § 75.202(a), a safety
standard titled “Protection from falls of roof, face and ribs,” which provides “[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.” A hearing
was held on January 23 and 24, 2019 in Henderson, Kentucky.
For the reasons which follow, the Court finds that the violation was established, and that
it was significant and substantial but that it was neither an unwarrantable failure nor, under any
theory, was it a flagrant violation. A proposed civil penalty of $165,700.00 was assessed against
Peabody for the violation in accordance with the special assessment provisions of 30 C.F.R. §
100.5(e). As also explained below, based on the Court’s findings of fact and credibility
determinations, a civil penalty in the amount of $40,000.00 (forty thousand dollars) is imposed
for this violation.

41 FMSHRC Page 279

The Alleged Violation
On January 13, 2016, the Mine Safety and Health Administration (MSHA) issued a
Section 104(d)(2) Order, No. 9036925, to Peabody Midwest Mining, LLC (“Peabody”) at the
Respondent’s Francisco Underground Pit. (Ex. P-1). Order No. 9036925 alleges:
The roof, face and ribs of areas where persons work or travel shall be supported or
otherwise controlled to protect persons from hazards related to fall of the roof,
face or ribs. Loose coal ribs were observed in 13 entries for a distance of
approximately 500 feet on the MMU-002 and [MMU-022] 1 active working
sections. The loose coal ribs measured approximately 4 inches to 18 inches in
thickness for 6 ½ to 7 feet in height and 30 to 40 feet in length gapped away from
the solid pillar approximately 3 to 6 inches with rock dust present behind them.
The mine operator’s pre-shift and on-shift record books indicate that the
production crews had been prying down ribs but no evidence of correcting any
hazardous condition was present at time of inspection. The mine operator has
engaged in aggravated conduct constituting more than ordinary negligence by
allowing this condition to exist until the arrival of MSHA. This violation is an
unwarrantable failure to comply with a mandatory standard. Standard 75.202(a)
was cited (34 times in two years at mine 1202295 (34 to the operator, 0 to a
contactor.) Id.
Findings of Fact
MSHA Inspector Glenn Fishback testified for the Secretary. Fishback has been with
MSHA for 11½ years. His total mining experience, including his years with MSHA, is 40 years.
Tr. 25. Fishback has been an MSHA roof and rib control specialist for eight years. Tr. 26-29,
105. Some 29 years of his mining experience involved examining for bad roof and ribs. Tr. 106.
Regarding the matter in issue, Fishback was at the mine on January 13, 2016. He was there to
conduct his regular duties as a roof control specialist and to “extend the violation [regarding a
separate roof control violation] which had been issued to the mine and to evaluate conditions of
the area from an order that had been issued previously.” Tr. 30. The extension was to allow the
mine to submit a new roof control plan. Thus, he was at the mine to terminate a previous order,
and in fact he did terminate that order on that day, January 13. Fishback required as part of that
termination, that the mine retrain its management people in doing proper examinations. Tr. 34.
Following that, Fishback went underground. His escort that day was Travis Hayden. Tr.
36. It was during that inspection that Fishback issued the order which is the subject of this
decision. Exhibit P-1 is Fishback’s 104(d)(2) order for the alleged violation of standard
75.202(a), which he issued on January 13. Tr. 36. Fishback marked on a map, using an orange

1

The order originally listed MMU-012, but was amended to reflect the correct MMU,
which was 022. (Exhibit P-1, p. 4)

41 FMSHRC Page 280

highlighter pen, the path, that is, the route he took that day on his inspection.2 Tr. 38. Ex. P-2. On
that day crosscut 11 was the last open crosscut. Tr. 39. Next to entry 5, the conveyor belt line, is
entry 4, the travel road he used to arrive at the section. Fishback gave detailed testimony about
the route he took that day and it was during that route that he came upon the areas he identified
in his order.3 Tr. 53. His examination of the cited areas took an hour or more. Tr. 54.
Referring to the conditions he observed in connection with his order, Fishback stated
there was a lot of “rib rash … and a lot of broke up rib conditions.” Tr. 60. “Ribs,” of course,
refer to the mine’s sides and it was along those ribs that the inspector observed “various cracks
running through it. Some of them were gap[ped] where [he] could see in between them, and they
2

The map, Ex. P-2, was provided by the Respondent as part of the Secretary’s discovery
but the Respondent asserted during the hearing that the map could not be used as a device to
actually show “where the faces were at the time of the inspection.” Tr. 38. (emphasis added). It is
true that Ex. P-2 is a more recent map, as it reflects mining activity well past crosscut 11,
showing crosscuts from 12 to 23. However, that does not diminish the map’s usefulness, as its
purpose was to illustrate where Fishback traveled on the day in issue. The precise location of the
faces on January 13 is not essential to the issues at hand, nor does it diminish the identification of
the route Fishback took that day. Later, on recross-examination, Fishback confirmed that Ex. P-2
reflects, in orange, the route he could definitively say he traveled but, beyond the orange
highlighter marking on the exhibit, he could not be sure about other details of his travel that day.
Tr. 177, 182.
3

Although Fishback described the route he took that day, to better visualize the
inspector’s route of travel that day, the Court recommends that the reader consult Ex. P-2 which
includes the orange-highlighted depiction of his route, as mentioned above. In his testimony, he
stated that he traveled up to crosscut 8, from entry 4 to crosscut 8. Tr. 39-40. The feeder was then
at 9, which he indicated on the map with a small triangle, signifying the belt tail piece location.
Crosscut 9 intersects with entry 5. This was marked using a black pen. Tr. 42. From that point,
Fishback traveled through crosscut 8 over to entry 5 and then at the intersection of crosscut 8 in
entry 5, he proceeded to crosscut 9. Tr. 43. After checking things in that area he then returned to
entry 4 and from there up to crosscut 10 and then to was is listed on the map as entry 00. Tr. 4344. The inspector added a black arrow showing his direction of travel there. Tr. 45. Crosscut 11
was the last open crosscut at that time. Tr. 45. He then traveled from entry 00 to entry 11, taking
some air readings as he progressed. Id. This was part of his imminent danger run, a standard
preliminary duty before visiting the area he intended to inspect. He then traveled down entry 11
up to crosscut 5, which is just below entry 6 and from there he returned to entry 8, traveling inby
to the second opening, which was then at crosscut 10. Tr. 50. Next, he proceeded from entry 8 to
entry 6 and then traveled outby from 6. Tr. 53. Also, in response to the Court’s questions, in
learning about the distances between crosscuts and entries, Fishback stated the distances between
crosscuts varied between 60 to 80 feet, but typically they would be 60 feet apart. Roof stability
can be a reason for these variations. Tr. 55. The entries are also not uniform, in the distances
between them. Accordingly, a pillar length may vary. Further, for purposes of record
clarification, Fishback stated that the lines he marked on Ex. P-2 with an orange highlighter
represented the area he walked and where he found the problems he cited in Order No. 9036925.
Tr. 57. The map pertains to one unit, for which the mine had two MMU’s (mechanized mining
units). The right MMU is 22 and the other MMU was 2. Tr. 58-59.

41 FMSHRC Page 281

had rock dust behind them, which indicated they’d been there.” Tr. 60. By stating “they’d been
there,” Fishback obviously meant the gaps were not recent, as there was rock dust behind them.
There was a mud seam in the cited are and this presented a problem, according to
Fishback, because it increased the risk of a rib falling on miners. This was an ongoing problem
and the mine had been cited for this issue before. Tr. 61. Exhibit P-1, Fishback’s Order in this
matter, describes but one bad rib, that is, loose coal measurement, in it. As reflected in the text
his order, he measured it at 4 to 18 inches thick by 6 ½ to 7 feet in height and 30 to 40 feet in
length and having a gap of 3 to 6 inches with rock dust behind it. Tr. 61. Asked why no precise
location was listed for this bad rib in the order, Fishback stated that the measurement was
representative, approximately, “of all of the conditions [he] found.” Tr. 61, 65. He did not
contend that the ribs were bad along “every step” but rather that similar conditions existed
everywhere he traveled in that area. Tr. 62. Travis Hayden, the mine’s representative who was
traveling with Fishback at that time, then asserted to the inspector in response to those rib
conditions that the mine “had been prying on them.” Tr. 62. Significantly, to the Court, Fishback
did not contradict that claim of Hayden. Instead, when asked if anybody else came up to him and
asserted that they were prying ribs, Fishback only responded “[n]ot that I remember.” Id. As
noted in this decision, though asked several times about that issue, the inspector could never
affirmatively state that he saw no one working on ribs – he could only state that he could not
remember such activity.
Fishback also spoke to Ex. P-3, which is a book MSHA kept in its office, reflecting
notification to a mine of conditions that are continuing to exist at a mine. Tr. 66. The purpose
behind the book is to have the mine conduct “heightened awareness” of a given problem. Tr. 66,
162-163. The book reflects that the mine had been put on such heightened awareness status on
August 12, 2015 for standard 202(a). Subsequently they were taken off that status for that
condition. Tr. 67. However, as of January 13, 2016, the mine was on that “heightened
awareness” status.
While the order describes only one, approximate, measurement of the rib conditions,
taken by Fishback, and about which he characterized as representative of the conditions he
observed, he did take numerous photographs of the conditions he observed, which were offered
in support of his order. Tr. 62, Ex. P-5. The photos in this multi-page exhibit, Ex. P-5, reflect the
date and time they were taken. Tr. 69. No photo lists the exact location where it was taken. The
reason for this was the inordinate amount of time such an effort would require. Tr. 71. At the
first page of Ex. P-5, that photo was taken between crosscut 5 and 12. For that first photo,
Fishback stated that it shows a rib that had either rashed off or alternatively may have been taken
down. Tr. 72. However, the photo also displays, he contended, “several other areas there that
[were] about to fall on themselves.” Id. He elaborated that these areas were on the left side of the
photo and show “all those areas that are cracked, [as evidenced by] the black outline [ ] around
each of them, that they are about to either fall off or they need to be pried off, one or the other.”
Id. In these photos, the light, whiter, color represents rock dust that’s been applied, while the
brown or light tan colors still reflect rock dust but where the moisture has been sucked out of the
coal. Tr. 73. Black in the photos represents bare coal where the ribs had fallen. This fallen coal

41 FMSHRC Page 282

was sometimes right by the ribs and sometimes in the middle of the entries, dependent upon the
thickness of the fallen material. Id. The roof height was seven to eight feet.4 Id.
Fishback then discussed several of his other photos from the exhibit and it is fair to state,
that while the particular descriptions of the conditions in each photo varied, they all represented
conditions that the inspector believed supported his opinion of ribs that were in need of
attention.5 Tr. 80, 82. Explaining the pictures further, Fishback stated that “[w]here you’re seeing
the black area, it’s already fell off where it’s black, and the cracks indicate that it’s going to fall
in the near future.” Tr. 83. More examples were cited. Tr. 85.
The Secretary stated, quite reasonably in the Court’s view, that he did not want to take
the witness through each of the many photos the inspector captured that day. Given that, the
Court inquired whether, for all of photos Fishback had described up to that point, if they were
“representative of what [Fishback] saw throughout the section and caused [him] to issue [the
order in this case].” Fishback responded, “Yes.” Tr. 95.
Fishback stated that there would be exposure to these rib conditions. Therefore, the ribs
did not present simply an academic issue. For example, there were electrical cables along the rib
and these would need attention as mining advanced. Miners doing that work would be right next
to the rib. Tr. 87-88. Similar issues were identified with cables and rib issues. See also, Tr. 89,
and Tr. 90, with the latter an example of a rib that broke from the solid pillar. Tr. 90.
Fishback was then directed to page 53 of Ex. P-5. He identified it as a rib that had either
fallen out or had been taken out by the operator and for which condition the operator had
installed supplemental support, timbers, to help hold the lower portion of the rib. Tr. 96.
That photo was taken on January 15, 2016. Id. and Ex. P-5, at 54 and 55. The photos were taken
in connection with his termination of this order. Tr. 96-97.
The Secretary then asked Fishback about Pages 35 and 36 within Ex. P-5. He described it
as a rib with cracks in it and which had been heavily rock dusted. The photo also showed the
examiner’s date, time and initials, marked by orange spray paint. Tr. 97. Page 38 of Ex. P-5 also
shows the same spray painted initials but for that photo, beyond recording January 2016, the
exact date was unclear. Tr. 98. Fishback stated that this photo also shows loose ribs. Tr. 98-99.
The Court asked the witness to focus, for the moment, solely on Photo 38, asking whether, if he
only saw that condition on that day, would he have issued a 75.202(a) violation for that alone?
Fishback answered he probably would have issued a citation or order for that because the
examiner’s initials were right on it and therefore he could not contend that he did not see the
4

To gain perspective of the photo’s depiction, Fishback drew a red diagonal line on the
exhibit to demarcate the roof’s location in the photo. Tr. 74-76. He also drew a line to show the
junction between the roof and the rib. Tr. 78-79.
5

Fishback agreed that for these photographs, most consisted of paired sets of each photo.
That is, for Ex. P-5, photos one and two are the same picture, with one simply being an
obviously clearer picture of the other. As a second example, Ex. P-5, photos three and four,
represent the same picture. Tr. 81. Ex. P-5, photos five and six, are yet another example. Tr. 83.

41 FMSHRC Page 283

condition. However, as Fishback viewed the matter as encompassing multiple rib problems, he
could not commit to asserting that condition alone would be a 75.202(a) violation. Tr. 100-101.
Fishback agreed that, for each of the photos he discussed in his testimony, the ribs were
not adequately supported or otherwise controlled to protect persons from hazards related to falls.
Tr. 104. When rib material comes down, it starts straight down, but he stated that if the material
is sufficient it will fall into an entry. Tr. 107. Fishback knows firsthand of the hazard a rib can
present, as he was once struck by a falling rib, though no broken bone resulted from that event.
Tr. 108. It is noteworthy that the cited standard is considered important enough to have been
designated by MSHA as one of its “rules to live by.”6 Tr. 109. The mud seam adds to the safety
issue because it increases the chances of cracking and breaking around the seam and then
material dislodging from the ribs. Tr. 110.
Fishback also informed that he had spoken to the mine’s operations manager, Jon Dever
and also “[p]robably everybody in management for sure at the mine at that time.” Id.
Those discussions included his suggestions for supplemental support, such as rib bolting and
timbering, all with the idea of helping to eliminate the rib rashing. Id. However, he stated that so
far none of his suggestions had been adopted, at least in that cited section of the mine.7 Tr. 111112.
As noted above, Fishback was not definitive when asked if he saw any miners taking
down ribs when he issued his order, stating “not that I remember.” Tr. 113-115, 140.
He asserted inquiring “don’t you think we need to pry some ribs around here?” Tr. 113.
This was prompted because he “just kept finding” rib problems. Id. He then rephrased his
question asking the miners “why are we not prying ribs down?” Tr. 114. Also, the mine was
running coal at that time. Id.
Fishback’s order did acknowledge that the pre-shift and on-shift record books reflected
that the production crews had been prying down ribs. Tr. 115. The Order also listed his
determination that an injury or illness was highly likely, because of the conditions he found that
day. The result could be a serious injury, such as broken bones. The maximum number of miners
exposed was listed as ten. Tr. 116. Weekly examiners and the rock dusting crew would have
been exposed to the conditions. It was marked as significant and substantial because of the size
of the ribs and the conditions he encountered. Tr. 117. He concluded that the conditions
6

The Court takes official notice of MSHA’s “Fatality Prevention –Rules to Live By,” its
initiative to improve the prevention of fatalities in mining,” lists the cited standard, 30 C.F.R. §
75.202, as one of the coal priority standards, falls of roof and rib. See Fatality Prevention – Rules
to Live By, U.S. DEP’T OF LABOR, MINE SAFETY & HEALTH ADMIN.,
https://arlweb.msha.gov/readroom/coal%20handbook/MSHA%20-%20Initiatives%20%20Fatality%20Prevention%20-%20Rules%20to%20Live%20By%20I.htm (last visited April
22, 2019).
7

It was also brought up that MSHA determined that the mine’s roof control plan needed
to be amended. Tr. 112. This issue arose at a point in time before the order involved in this
proceeding. Id. However, the changes were not implemented until after the order here was
issued. Tr. 113.

41 FMSHRC Page 284

presented a “major safety hazard.” Id. In characterizing the conditions as “excessive,” Fishback
justified that term because “[i]t covered the whole working section and people were exposed to
it.” Tr. 118. Further, based on his experience, he believed the conditions had existed for “[o]ne to
two weeks,” and he expressed that they were obvious, a conclusion he believed was supported by
his photographs. Tr. 119. Aggravating the situation, in his view, the operator had been put on
notice that greater efforts were needed to address the issue. Id. In terms of correcting the suspect
ribs, management informed Fishback that it took seven or eight miners over a period of seven
shifts to accomplish this. Tr. 120, 161.
Before beginning cross-examination, Respondent’s Attorney, Mr. Wolfson, reasserted an
objection he had lodged earlier – namely that the photos should not be admitted because of the
alleged “non-specificity of the location listed on the [inspector’s] worksheets.” Tr. 123.
The Court ruled, as it had before,8 that the inspector testified that “all these photographs were
taken in the area which [the inspector] traced with the orange marker … [and that it would have
been] “excessively burdensome and time-consuming” to have required the specific locations
Respondent sought. The Court also noted that “[c]ertainly, there’s no testimony that these were
taken at some other mine or some other location.” Tr. 124. For those reasons, as it did in its
earlier decision involving this mine and this mud seam, the Court rejected the Respondent’s
objections.
Cross-examination began by directing the inspector to his notes, Ex. P-4, at page 27.
They pertain to 30 C.F.R. § 75.223(a)(1), and deal with a citation he also issued on January 13,
2016, involving the mine’s need to revise its roof control plan. Tr. 126. Fishback agreed that he
did not issue an order shutting down the section until after he made his complete inspection of
the working section. Tr. 132.9
The inspector concurred that he advised the crew to be more diligent in their rib prying,
and that his notes reflected that the crew told him they had been prying down ribs, but he told
them that he had seen no one pry a thing the whole time. Tr. 139-140.
In cleaning up material that has been pried down, depending upon the amount involved,
typically a scoop will be used to clean up the fallen material. Tr. 141. When asked if he was able
to see fallen material in the photos discussed during direct examination, Fishback stated he could
not detect such material in the photos and Counsel for the Secretary stipulated that in photos 1

8

See, the Court’s earlier decision involving the same mud seam at the Respondent’s mine
and the issue of the sufficiency of the location of the loose ribs. Peabody Midwest Mining LLC,
2018 WL 816286 *11 (Feb 2018) (ALJ), for example.
9

Following that, it was remarked that in his notes regarding the working section,
Fishback marked “NVO,” which is shorthand for “no violations observed.” However, Fishback
explained that was limited to methane or oxygen issues. Tr. 133.

41 FMSHRC Page 285

through 22, 35, 36, and 53 through 55, they do not show material on the ground.
Tr. 143.10
Respondent’s Counsel raised the matter of alleged violations cited by Fishback in the
prior year, on August 12, 2015. These were not located near the order in this case, but rather on
the second southwest main travelway. Tr. 164-169.11
The Secretary then called MSHA Inspector Stephen William Tisdale. Tr. 186. His total
mining experience, including that with MSHA, comprises about 15 years. Tr. 188. Directed to
Ex. P-8, he identified it as orders he had previously issued on October 28, 2015 to the Francisco
Mine for violations of 75.202(a), the same provision cited here, involving maintaining safe ribs
and roof. Tr. 189. This was not new ground to the Court, as it presided in an earlier hearing
involving those matters and had issued a decision regarding that, which decision was not
appealed. See, Peabody Midwest Mining LLC, 2018 WL 816286 (Feb 2018) (ALJ). More will be
said about this in the Discussion section below, because the Court has determined that it bears
upon the present decision.
Then directed to January 14, 2016, Tisdale stated that he was at the mine that day to
terminate an earlier issued (d) order, No. 9036925, the order at issue here, that as discussed had
been issued by Fishback. However, Tisdale did not terminate the order that day. Tr. 194.
This was because when he arrived at the areas covered by the order he “found miners still
working on the conditions that were cited in the order … there was still a lot of material on the
ground. There were bolters bolting [wide] bolt spacing. The faces actually had a lot of material in
them also.” Tr. 195. Tisdale added, “[i]n the faces, they would have been full almost to the point
they were into the last open [crosscut]. And [he] believe[d] that is what prompted [him] to
modify [Fishback’s] order because they had nowhere else to store [the rib] material. And if they
would have continued to put [that material] in the faces, they would have been creating another
hazard.” Id. That other hazard was the material was making it difficult to do adequate gas checks
at the faces. Miners were having to crawl over coal piles to do those checks. Tr. 196. Also, while
10

Fishback agreed that his order reflects one set of “measurements” that day but he stated
that he took several measurements while at the site that day. However, the listed “measurements”
do not reflect “actual” measurements in the sense one would typically use that term, but rather
represent an average of the estimated measurements he took. Further, he was unable to recall the
number of measurements he took in order to arrive at that average, nor specifically where they
were taken in the section. Tr. 146-147. It is noted that within Ex. P-4, pages 11-12 of the
inspector’s notes, is listed the “measurements” he took and those are the same measurements he
listed in his order. Tr. 148.
11

The Court references this only for the purpose of completeness, but it does not believe
it is pertinent, nor helpful, to resolving the issues in this case. In fact, the Court expressly
remarked at the hearing that it did not see how it helped resolve the present controversy. Tr. 169.
It would seem to have been offered to show that the Respondent addressed those earlier
identified problems by having a roof bolter move to an outby location in order to attend to them.
These involved alleged violations of 75.202(a) and 75.220(a)(1). Tr. 164. On redirect, the
Secretary returned to Fishback’s August 12, 2015 citation, which the inspector informed was
issued for a section 202(a) violation, and involved a bad rib issue. Tr. 170.

41 FMSHRC Page 286

he was there, Tisdale found some loose ribs that needed to be pulled down. In his opinion, the
amount of material present was almost significant enough to prevent a scoop to drive through
there. Tr. 197. Roof bolters were also working there, to replace areas where there was then wide
bolt spacing created by the ribs being pulled down. Tr. 197-198.
Tisdale also identified Ex. P-8 as what was represented to him by Todd Seilhymer, who
was at that time the mine’s superintendent, as to the number of miners who had been working on
the rib issue. Tr. 199. Yet, while the mine believed that the order was ready to be lifted and
though two more shifts had elapsed before Tisdale arrived at the mine to assess the situation,
work was still being done to address the problem. Id. Thus, the order remained intact and Tisdale
only allowed a scoop to load the material on the belt. This modification was to make it clear that
no mining could resume at that point – only continued cleanup was allowed. Tr. 200. At that
time, Tisdale also observed scoops dealing with the ribs and pry bars being employed too. At
least six ribs were pried down while he was there and some required effort to take them down,
but “[t]here were [a] couple that very eas[ily] came down.” Tr. 201. These pried ribs came out
into the entry – they did not just fall straight down. Id. Tisdale knew that a lot of material had
been taken down, by the amount of material that was in the faces. Tr. 202.
At that point, the Secretary having rested, subject to the potential for rebuttal testimony,
the Respondent called its first witness, Casey Winters. Tr. 210. Winters has ten years of mining
experience. Tr. 213. In January 2016, Winters was a “lead man,” a position he described as a
junior face boss or section foreman. Presently, he is an “operator.” Id. At the time of Fishback’s
order, the mine ran three shifts. One of those shifts was idle, which meant that shift did anything
that would help the mine run coal. This included belt moves, cleaning, building walls, and
scooping. Tr. 211. Winters was then on Unit 2 production. There were then three working
sections. Id.
Winters agreed that in January 2016, the mine had a mud seam. Tr. 213. He described the
condition as “mud in between coal. It was coal on top, coal on the bottom. There would be a mud
bank running all the way through it.” Tr. 214. He stated that the condition did have an effect on
the ribs, “Yeah, the ribs would, where the mud was, would usually kind of fall out.” Tr. 214. He
then elaborated how this condition was addressed, “We always – it was a rule that we always had
someone, one person detected to prying ribs. All shift long, no matter shift it was, you had to
have somebody prying ribs … and it was one of the biggest things we did, prying ribs and spot a
bolt.” Tr. 214. In response to the Court, Winters confirmed that the mine had one person
dedicated to dealing with ribs at all times. Tr. 215. This was true, Winters stated for every shift.
And this was full-time job, all the time, not just as needed. Id.
When the Court then suggested that such a practice must have meant there was much to
attend to, Winters responded that he wasn’t suggesting that person was “busy all the time … but
it was their job to patrol the unit and look for anything, whether it would be the two-inch piece to
pry down or you could spot … bolt[s].” Tr. 216. The mine also took other measures to deal with
rib control. One of these was addressing mud vein corners by shearing them with the continuous
miner, cutting it at an angle. This practice prevented the corners from falling out. Tr. 217.

41 FMSHRC Page 287

Winters also spoke to the type of material that would come out upon prying a rib. It
would vary, he said, asserting that it could be a foot by a foot or less, with a thickness of six
inches. He described it as knocking chunks of coal down. Tr. 218. Asked if, per the Order in this
matter, he encountered ribs in Unit 2 of the dimensions described in that Order, Winters
responded that he never did. Tr. 219.
Directed to midnight shift on January 13, 2016, Winters stated that he worked the
midnight shift that day on Unit 2. This was in the time frame before the Order in issue here, from
11 pm until 7 am. Tr. 227. He asserted that on that shift he was working on an outby drive belt,
and also was there to bolt up the unit, and to add a new drive setup, which was not on Unit 2. Tr.
220. Two roof bolters did the work at the unit and, in total, there were three of them working that
shift. He also asserted that he scaled the “whole time” that shift. Tr. 222.
He acknowledged
that coal might be run during this shift too. Tr. 223-224. Winters, while maintaining that the
amount of material was only six inches to a foot or two, and up to three feet tall,12 did
acknowledge that the rib issue was not just in one location. Instead, it was “throughout the whole
section.” Tr. 225.
Winters was also shown Ex. R-3, the pre-shift book. It records the conditions he found
during that exam. Tr. 228. As Respondent’s Counsel walked him through that exhibit, Winters
agreed that it noted wide bolt spacing and spotting 15 bolts in one location and four bolts in entry
2 and three bolts in Entry 1 and in 00, he spotted a corner bolt. Asked if those bolting actions
were as a result of prying ribs, Winters responded, “[y]eah, I would say,” adding that 95% of
them were from prying. Tr. 229.
Winters stated that the spotting was also done outby the tail piece.13 Tr. 230. He also
maintained that, following the prying he would replenish the rock dust by hand, not by machine,
and for loose debris he “would always scoop it up.” Tr. 233-234.
On cross-examination, Winters agreed that if he threw rock dust on areas that had been
pried, one would not expect to see blocks of black coal. Tr.236. Winters was less certain when
asked whether, following the Order, issued after his midnight shift, for the next two days, there
was no active mining, stating he would need to look at the production shift. Id. He explained that
he might not have been up on that section for his next shift, the following night, but he couldn’t
have that response both ways, in that he could not know how much work had been done to
correct the problem, following the order’s issuance. Tr. 237. Thus, he admitted he could not
speak directly to the assertion that it took eight miners per shift for seven shifts to correct the
violation. Tr. 237-238. He then conceded that he did not know the material was sufficient that,
when the new inspector arrived, that inspector found chunks of coal on the ground upwards of
two to three feet thick. Tr. 238.
While Winters challenged the idea that the amount of material was sufficient to block his
ability to do his gas checks at the face, he admitted he couldn’t recall if he even was working on
12

Winters did not view a piece of those dimensions to be “a big piece.” Tr. 226.

13

When shown the production report, it reflected his earlier testimony that there was no
production on that midnight shift. Ex. R 2, Tr. 231-232.

41 FMSHRC Page 288

that unit on the January 14. In fact, even for the next day, January 15, he could not recall if he
was there following the Order. Tr. 238-239.
Travis Hayden, section foreman, then testified for the Respondent. Tr. 243. He held the
same position in January 2016. However, while he escorted MSHA Inspector Fishback on that
day, he had never worked in Unit 2. Tr. 244. He stated that at the tail piece Fishback found a
loose rib, but that he, Hayden, was unable to get it to come down. Tr. 246. Hayden did not
believe it really was a loose rib. Instead Hayden believed there was a crack in it. Id.
Their travel continued to the far left entry, at 00. Tr. 248. In the last open crosscut Fishback
pointed out one rib with an issue, between zero and double zero (“00”). Hayden considered it to
be a crack, very much like the crack they viewed at the tail piece. Id. Hayden spoke of a crack or
a small gap as essentially the same condition. Tr. 249. Fishback used a stick to pry the condition,
but according to Hayden, only small pieces came out. Id.
Their travel then proceeded to the last open crosscut, but Hayden stated that Fishback did
not raise any other rib concerns. Tr. 249-250. Nor, Hayden stated, did Fishback note any other
rib issues between entries 11 and 6. Tr. 250. However, at the power center Fishback “pointed out
a few ribs” needing attention. Id. For one of those issues, near the power center, Winters again
described some cracking, but Fishback did not ask that the condition be pried, nor did he ask him
to find someone to pry it, nor did he require that the location be flagged. Tr. 251.
From there they continued to walk outby where some cracking was observed: “[k]ind of just
cracking in the ribs. In the mud vein is what I call it.” Tr. 252. He estimated there were
“probably four or five spots [Fishback] pointed out to [him] in through that area.” Id. As for the
mud vein, Hayden did not view the rib issues as gapping. Instead, his description was that “it was
more cracking.” Tr. 253.
At that point in their route, after traveling entry 7 and over to entry 4, things changed, as
Fishback told Hayden to “get ahold of the face boss on the unit. He was shutting down the unit,
and … [Fishback] wanted to have … a safety meeting with the guys … on the unit.” Tr. 255.
Fishback, again according to Hayden, asked the crew if anyone had been prying down ribs that
day. Everyone on the crew, Hayden stated, told Fishback that they had been prying ribs that day.
Tr. 256. Also, at that time, Fishback pointed out a rib to the assembled crew, but when a miner,
Joe Frederick, tried to deal with it, the rib could not be pried down. Tr. 256-257. The matter was
addressed by having a scoop knock down the rib. Hayden also contended that he saw Fishback
take only one measurement during the entire time – that was to measure the air in the width of
the entry to the last open crosscut. Tr. 258.
Hayden further asserted that, while accompanying Fishback, he did see evidence that
prying had occurred, as he observed pieces of rib on the ground next to the ribs. Tr. 259-260. In
essence, Hayden presented a very different picture of the conditions from Fishback’s accounting.
For example, he stated that there were a lot of areas that had been “freshly scooped,” meaning
the ribs were square and the bottom was clean. Tr. 260. Despite that testimony, he acknowledged
that “there were some ribs on the ground. [Hayden] even pointed some of them out to show
[Fishback] that we was prying ribs out, just to show him we was making an effort to take care of
the problem.” Id.

41 FMSHRC Page 289

Hayden informed that he made notes of the inspection. Tr. 262. This evolved into a
statement that was derived from his notes while he was underground. Tr. 264. On crossexamination, although he may have filled out an “escort” sheet which would contain very basic
information, such as stating that the inspector issued a (d) order on Unit 2, he could not be sure
that was done in this instance. Tr. 265. It was in his statement that Hayden asserted that everyone
had been pulling down ribs. Tr. 266. Hayden stated that whenever a (d) order is issued, a
statement is to be made. Tr. 267. His statement was subsequently admitted as Exhibit R-4. Tr.
280. Although he asserted that the process at the mine was for each miner working at the unit to
create a statement, he couldn’t speak to whether that was actually done, nor could he inform
whether Chris Robinson or Todd Seilhymer created their own statements. Tr. 269.
He then backed away from his earlier remark that statements were part of the mine’s protocol.
Tr. 270.
After the order was issued, Hayden did not return to the unit over the next seven shifts to
view the conditions. Tr. 270. However, he acknowledged awareness of what had to be done to
abate the cited conditions. This included knowledge that the amount of material from the bad ribs
that was placed near the face was such that it was difficult to run gas checks along the face. Tr.
271. Confronted with the disparity between his testimony that Fishback noted only four or five
cracks in the areas and the great effort it took to take down the bad ribs, Hayden answered that
“you can bring down whatever you want if you start picking at it all day long.” Tr. 272.
However, he conceded that, with ribs, small pieces can come down, but large ones can fall too.
Tr. 273. Importantly, he admitted that one can’t know if a small piece or a large one may come
down. Further, cracks can be an indicator of loose ribs. Tr. 274. Cracks, he conceded, are an
indication that there is something wrong with a rib. Id. Hayden was with the inspector when he
was taking the photographs. Tr. 279.
Zachary Hudson next testified for the Respondent. Tr. 281. In January 2016, he was a
“fill-in” face boss at the mine. He was part of the B crew and, as alluded to in earlier testimony,
the crews rotated, so that one crew would work two weeks on days and two weeks on the
afternoon shift. Tr. 281-282. Though he agreed there was a mud seam present, and that the
condition would cause the ribs to flake out, there was “nothing real big. You know, just push out
little chunks of coal or something.” Tr. 283. Hudson agreed that he had testified in an earlier
proceeding regarding an order issued December 22, 2015 involving rib control on Unit 2.
Tr. 283. Following that order, additional steps were instituted to address rib control. Id.
This consisted of having a designated person prying down ribs. Id. He then added that
“everybody” was participating in the rib control issue. Tr. 284, 285. He also contended that he
would have meetings with the crew and that they talked about the rib issues “since we knew that
we had that mud vein.” Tr. 284.
While Hudson contended that everyone was attentive to the rib issue, he asserted that
“just because the rib was gapped, doesn’t mean that it was ready to come down because some of
that stuff was still intact pretty damn good.” Tr. 287. However, he asserted that they would still
check on them, though again, at times, they turned out not to be loose. Tr. 288. He did not agree
with earlier testimony that miners would hand dust after a rib had been pried down. It was not, he
stated, a common practice to hand dust. Tr. 288-289, 307. When, as a result of rib issues, timbers

41 FMSHRC Page 290

or bolting resulted, it would be noted in the mine reports. Ex. R-5, Tr. 289. He agreed that the
report reflects that ribs were pried. Tr. 291-294.
Then directed to his January 13, 2016 section report, he noted that they were not running
both sides of the split area unit that day. Tr. 296. MSHA inspector Danny Mann was there for
part of that time, but Hudson stated that inspector did not raise any rib issues with him. Tr. 299.
Hudson did not recall speaking with Fishback about his order, though he did recall Fishback
meeting with the miners about the issue. Tr. 300. There was some history between Fishback and
Hudson in that, according to Hudson, for that December 2015 order, Fishback asserted that
Hudson was “a bad boss.” Tr. 301. For that reason he kept his distance from Fishback during the
January 13 event, not wanting to have any conflict in front of his crew. Tr. 301.
However, Hudson did hear his crew talking with Fishback. Specifically, he recalled
Woody Hembry telling Fishback that he did not feel things were unsafe because they were
“constantly prying down ribs.” Tr. 302. Hudson also disagreed with Fishback’s recording in Ex.
P-1 regarding the claimed loose coal ribs dimensions, stating that he never saw anything of that
size, remarking that dimension would be “the whole size of the pillar.” Tr. 302-303.
During cross-examination, when asked about his knowledge of two previous 104(d)(2)
orders for violations of section 75.202(a), Hudson stated he did not know what that meant and
that he didn’t know what 202(a) referred to. Tr. 305. Referencing Ex. P-8, Hudson said he could
not recall those previous orders. He then explained that in his earlier reference to Fishback’s
meeting with the mine crew, he was referring to the December order for loose ribs, when he and
Fishback exchanged words, meaning they had a confrontation. Tr. 306. He did agree that,
following the time when he had words with Fishback, additional training ensued. This involved
“examining the ribs a little bit better.” Tr. 306.
He did admit that, if one sees a gap, one always wants to try and eliminate that. Tr. 309.
He also agreed that in this unit a rib could come down anytime, because that mud seam was a
chronic rib problem in this particular section of the mine. Tr. 309.
Chase Reneer was next called by the Respondent. In January 2016 he was a roof bolter
on Unit 2 working the B crew. Tr. 317. Prior to the event in issue he had worked on Unit 2 for
about three years. He described the mud seam as “a fragile, brittle separation in between the coal
seam.” Tr. 319. To him, this meant the seam was not as sturdy. However, despite its presence, he
described the effect as only “little pieces coming out … nothing big.” Id. He maintained that
everybody participated in roof control “[e]very day.” Tr. 320. It was his testimony, in effect, that
the miners were quite diligent in dealing with the ribs. Tr. 319-321.
Addressing the day in issue, January 13, 2016, he was working the day shift then.
Ex. R-6 reflects where he bolted on that shift. Before he started bolting on that shift, he said he
saw evidence of rib prying. Tr. 323. There he noted a corner that had been pried and that it had
been hand dusted. Tr. 323-324. He also contended seeing other areas that had been spot bolted,
and during the shift itself, he saw miner John Butler prying ribs. Tr. 325.

41 FMSHRC Page 291

He further asserted that Fishback spoke to him about a loose rib between entries 4 and 5.
Tr. 326. Though he tried to pry it, it would not come down. Tr. 326-327. He then used a pinner
but only a piece about the size of a tissue box came out. Ultimately it only came out after great
effort. Tr. 328. He also supported the testimony of an earlier witness that, when Fishback was
meeting with the miners, he directed Joe Frederick to pry down a rib, but nothing would come
down. Tr. 329. After the order was issued, everyone had pry bars, trying to bring material down,
but he contended that only “small, crumbly” stuff came down. Tr. 331.
On cross-examination, Reneer agreed that the mud seam was a well-known condition in
that unit. Tr. 333. He remained on the unit following the issuance of the order. Tr. 335.
He admitted that one can’t tell, simply by looking at a rib whether the material will come down
and he agreed that one starts the effort with a pry bar. One cannot say, he admitted, whether a
given rib issue will come down in six minutes or six months. Tr. 336. He stated that they
installed at least 200 bolts in one shift following the order’s issuance. Tr. 337. He could not
recall if he was present when Inspector Tisdale returned to the mine with the idea of lifting
Fishback’s order, nor could he recall if he was present when Fishback returned after that and did
lift the order. Tr. 339. To sum up the practice they were employing, Reneer stated that if the
miners saw something loose they would try and pry it down. But if it did not come down, “then it
was left alone.” Tr. 340.
At the start of day two of the hearing, testimony began with Joseph Frederick, who was
called by the Respondent. Tr. 348. In January 2016 he was working in Unit 2 on the B crew. Tr.
349. Zach Hudson was his section foreman. Frederick had been on that unit for five years. He
agreed there was a mud seam, but described the effect as causing material to “flake out,” and that
the pieces were “[n]ot very big most of the time.” Tr. 350. This was dealt with by prying the
material down and then scooping it up for the feeder. He stated that they were told to pry down
the material if seen. Tr. 351. On the day in issue, January 13, Frederick was running the scoop, a
machine with a bucket on the front of it. Tr. 352. Most of the time, scooped material was put into
the faces and from there loaded up for the feeder. Frederick asserted that he was doing scaling on
that day, using a pry bar or the scoop bucket itself. Tr. 353. After the order was issued shutting
down the unit, Frederick stated that he used both a pry bar and the scoop for scaling. Tr. 353. He
also asserted that he saw others engaging in scaling that day, stating that “multiple ones” were
doing that. Tr. 354. He added that the scaling and scooping were being done both in the last and
in the second to last open crosscut. Tr. 355. Asked about the size, how big the scaled pieces
were, Frederick responded, “[m]aybe a couple feet big, yeah, couple feet big, I guess … [n]ot
very big … there was some smaller ones … on average probably about two feet around or so.”
Tr. 355-356. He disputed the measurement listed in Ex. P-1, stating it was “not that big.” Tr. 356.
Asked about the meeting with the MSHA inspector that day, he informed that the
inspector told them about the hazards from loose ribs. Tr. 357. Then the inspector pointed out a
rib he believed was loose and asked Frederick to attend to it. Id. He worked at it for 10 minutes
but “got very little out of it.” Id. Frederick stated there was a small crack in the rib, but asserted it
was not loose. Tr. 358.
On cross-examination, Frederick agreed that at times the rib material would fall out on its
own. When examining the ribs, he stated he would look to see if “it looked loose.” A crack, he

41 FMSHRC Page 292

stated, might indicate a loose rib, but if one pried and it did not come down, then he would leave
it alone. Tr. 359. Frederick took the position that the mud seam did not affect the stability of the
ribs. Id. He also disputed that they were having difficulty with loose ribs flaking out the entire
time, asserting it was not the entire time. Tr. 360. However, he did admit that the mud seam
created issues with the ribs. Id. Further, he agreed that the miners were always talking about the
mud seam and how it was affecting the ribs. Id. While he asserted that most rib pieces were not
big, some were larger, “maybe four feet or so.” Tr. 362. He agreed that a rib piece of that size
could seriously injure a miner. Id. In many respects, Frederick could not recall details associated
with the order but he did acknowledge that rib control is one of the rules to live by. Tr. 361-366.
Jonathan Butler then testified for the Respondent. At the time in issue he was working in
Unit 2 as a ventilation curtain operator. Tr. 368. He has five years of mining experience.
Tr. 369. He agreed there was a mud seam in that area, but he didn’t think it had an effect on the
ribs. Tr. 370. Though some rib prying was needed it was to deal with “flaking.” Id. The crew did
talk about rib prying and to take care of any potential hazards and to “just look out for each
other.” Tr. 371. He maintained that he would “keep an eye out there [for rib issues]. Id. He
repeated that the rib material he encountered was just “small, flaky material that … wouldn’t
amount to much.” Tr. 372. As with several other witnesses for the Respondent, when asked
about the rib dimensions referred to in Ex. P-1, he disagreed with those numbers, adding “[n]o,
I’ve never seen something to this day that big.” Tr. 373. In terms of addressing rib issues, Butler
looked for things with a big gap that one could actually get a pry bar in. One does not, he said,
“go just looking to pry stuff down if that’s not ready.” Id. Explaining further, he stated there
“wouldn’t really be a crack in it … [i]t would just be a solid seam.” Tr. 373-374. It was his view
that if one is working on a rib that isn’t ready, there’s a greater hazard in trying to do that. Tr.
374. He would determine this by putting some pressure on it and if it didn’t move it was not
wise to pry on it. Tr. 374.
Butler maintained that he was prying ribs that day before the order was issued. Tr. 375.
As to where he had been doing that prying, he responded, “[i]t had been all over.” Id.
However, he reiterated that the unit’s ribs “looked good.” He saw no “major hazards …[nothing]
besides the flaky material.” Tr. 375-376. In fact, he expected that the inspector would be
“pleased with the work we had done.” Tr. 376. Later, Butler was part of the meeting with the
inspector, who informed that the ribs were still bad and didn’t look any better. Id.
Apparently, the miners were taken aback by the Inspector’s reaction. Further, Butler
confirmed that Fishback asked Joe Frederick to attend to a rib that he felt needed attention.
However, Frederick, though he worked at it, could not get the rib to move. In Butler’s view,
trying to move a rib that is not ready to come down creates a greater hazard than leaving it alone
for the time being. Tr. 380.
On cross-examination, Butler informed that the rib that Frederick could not bring down
was not where the bolter cable was located. Tr. 378. He reiterated that the material he brought
down was flaky, not very thick, but rather thin. Tr. 379. When asked for more specifics about the
size, he stated they could be one to two feet. Id. He agreed that one needs to see a crack to tell if
a rib is ready to come down. Id. Elaborating, he agreed that seeing a crack the whole length of a
rib in the pillar means the rib needs to come down. Tr. 380. However, upon seeing a crack in the

41 FMSHRC Page 293

coal seam of 40 to 50 feet in length one needs to pry on that and if one doesn’t get any
movement, it’s not ready to come down. Id. Butler did not believe that the mud seam affected the
stability or integrity of the pillars. Id. In circumstances where a rib would not come down,
Butler’s approach was to “[k]eep an eye on it.” Tr. 382. However, he conceded that, in such
circumstances, he “probably [would] put flagging around it.” Tr. 383. Speaking generally, he
believed that it would probably take days for a rib that was not ready to fall, not minutes. Id.
There is certainly an element of uncertainty to the issue however, as Butler conceded that he has
seen a rib fall out on its own without any warning. Id. Tr. 383-384.
Following the issuance of the order, Butler started taking care of the ribs during the two
and a half hours remaining on his shift. “Everybody started scaling.” Tr. 384-385. He admitted
that, after his shift ended, another shift continued with the abatement, that is, as Butler put it,
“[f]ixing the problem.” Tr. 385-386.
Todd Seilhymer was the final witness for the Respondent. At the time of the order in this
matter, he was the mine superintendent, a position he also held in December 2015. Tr. 395.
At the time of his testimony in this matter he was no longer in that role, having moved to the
compliance department. Speaking to the mud seam which is a central topic in this matter,
Seilhymer agreed to what is undisputed – there is a mud seam throughout the mine. Initially, it
was small, a half-inch, but as they progressed into Unit 2 the seam continued to thicken. Tr. 397.
Moisture, he explained, affects the mud seam and the seam would deteriorate creating pressure
on the coal, which would then form cracks in the ribs. Tr. 398. At first the seam would look
normal but then it would deteriorate, with fractures or cracks appearing. Id. This condition was
primarily controlled by scaling. Id. However, consistent with other witnesses, Seilhymer
maintained that most of the material came out in small pieces and it could be controlled as long
as one continued to do scaling. Tr. 399. To address this, it was decided to have one person
designated to continuously scale across the section. Tr. 399-400. He added this did not mean
only one person did scaling. He maintained that the approach was if anyone saw something that
person was to pry it down. Tr. 400.
Seilhymer also contended that, after the December order, he would visit Unit 2 and would
check on the rib conditions when making those visits. It was his assertion that he would see
miners scaling during those visits, including the foreman. Tr. 401.
Ex. R-9, which was a citation for a failed rock dust sample, on Unit 2, at crosscut seven,
five to six intake, was shown to Seilhymer. Tr. 404. The sample was taken on January 5, 2016.
That citation was subsequently terminated on January 13, 2016 by Inspector Mann. The point of
Respondent’s Counsel introduction of this exhibit was that Inspector Mann went through the area
marked in green, as reflected in Ex. P-2. Tr. 406-407, but that he did not issue any rib control
violations at that time. Tr. 407 and Ex. R-11. On January 6, 2016, Inspector Mann was also at the
mine at Unit 2. Tr. 412, Ex. R-13. No rib control violations were issued by Mann on that day
either. Tr. 413.
Directed then to the matter in dispute, Seilhymer stated that on that day he received a call
that Fishback had issued a (d) order on Unit 2 for ribs. Tr. 414. He then proceeded underground
with mine manager Chris Robinson. They then met up with Fishback who “indicated [to them]

41 FMSHRC Page 294

that the ribs were terrible, [that he] was not pleased with the intake [and] said [that] it was
horrible and [he] couldn’t believe that [the mine] would have allowed men to travel out through
that at a primary escapeway [which is in the number six entry].” Tr. 415. Thus, Fishback’s issues
involved that escapeway and Unit 2. Tr. 416. The escapeway starts at the unit’s tail piece. Id.
Upon arriving at the unit, he saw that “guys had already started scaling ribs on the unit.” Id.
Seilhymer described some of the areas he walked. Tr. 417, Ex. P-2. In those areas, he described
that the ribs looked good. There were some cracks, he acknowledged, but overall he believed that
the ribs looked good and he added that the area was well rock dusted. Tr. 418. He described a
crack as similar to a spider web but with a gap one can see down inside. In most cases, a gap is
more dangerous because it indicates that the material is pulling away. Id. He admitted that the
presence of a crack shows there is pressure present. That pressure causes the crack. Tr. 419. The
cracks did not concern him at least in the sense that he did not feel there was a need to pull down
the ribs at that time. Id. He didn’t see any gaps, but admitted there might have been some. Still,
he saw only small pieces. Id. While he saw one or two places that indicated some scaling may
have been done, he did not see anybody scaling in that area while he was there. Tr. 420.
Seilhymer took many photos that day, some “80 or 90.” Tr. 421. Ex. R-14. Photo 1, from
those photos, was according to Seilhymer, generally representative of the rib material he saw that
day. Tr. 422. When he took the photos, Inspector Fishback was not with him.
The order had already been issued. Tr. 423. He maintained that the photos he took were not postabatement efforts. Id. As with the other witnesses for the Respondent, Seilhymer maintained that
only little pieces came loose. Tr. 426. He stated that the photos he took were representative of the
conditions in the primary escapeway and also in the five or six crosscuts previously discussed by
the witness. Tr. 431.
Seilhymer also informed that he was with Fishback when the order was terminated.
Fishback required some additional prying but “most of it was small pieces.” Tr. 432. The theme
presented by Seilhymer was essentially that, in some instances, ribs Fishback believed needed
scaling took great effort to bring them down. Typically, only small pieces were produced from
those efforts. In one instance prying didn’t work, nor did bumping the rib with a scoop.
Ultimately, that instance required a scoop operator “ramming” the rib and even then, initially, the
rib did not fall out. Tr. 437-439. Driving a machine into a rib is not a normal rib control
procedure. Tr. 440.
On cross-examination,14 Seilhymer agreed that all of the photos he took were basically in
the primary escapeway, which is entry six on the map. Tr. 449. He took no photos in entry 8, nor
11, nor in any of the entries in crosscut 10, nor entry 4. Tr. 449-450. He agreed that he went
down entry 6 and that was the only place he took photos. Tr. 450. He could not recall how long it
took to abate the cited conditions. Id. He could not recall giving information to Inspector Tisdale,
nor giving him a form. Tr. 450-451, Ex. P-7, at 4. As for the number of miners it took to abate
the order, so that it could be terminated, Seilhymer acknowledged he may have stated this to
Fishback but could not recall beyond that. Tr. 452. Though he admitted being down in the cited
section between when the order was issued and when he took his photos, he did not know how
14

An interesting side note: Seilhymer, like Fishback, could not precisely identify the
location of the photos he took either. In terms of how he knew the exact identification of a
location, he simply responded, “[b]ecause I took the photo.” Tr. 442, 444.

41 FMSHRC Page 295

much material was up at the working face. Tr. 454. Significantly, he admitted that he did not
walk the entire section. Id. He did not think he went across the face, “because normally, the face
area didn’t have deterioration as the out by areas.” Id. (emphasis added). Though he maintained
that a person was designated to do scaling, he could not identify the individuals so assigned. Tr.
456-457. Seilhymer admitted that scaling was the chief remedy applied to address the situation.
Tr. 457. Timbering was not discussed, nor was bolting into the ribs, nor wrapping the ribs with
mesh or wire, primarily, he maintained, because the material was so small. Id.
The Court had a few questions for Mr. Seilhymer. Showing him Ex. P-2, Seilhymer
acknowledged that he did not walk the entire area, as marked in orange highlighter on that
exhibit that Inspector Fishback walked on the day in issue. Tr. 460-461. He stated that “[m]ostly
[he] walked in by the tail piece other than entry number six. [He] walked it in its entirety.” Tr.
461. Asked to estimate the percentage he walked of the area Fishback covered, he responded,
“40 to 50 percent.” Id. When he walked that 40 to 50 percent he was by himself. Id. As the mine
superintendent at the time of this event, he acknowledged he was familiar with the cited
standard: 30 C.F.R. § 75.202. Tr. 462. He was then asked, given the areas he just testified about
where he walked following the order’s issuance, did he see violations of that standard. Seilhymer
responded, “[v]iolations, yes.” Tr. 463. With refreshing candor, and appreciated by the Court, he
affirmed that as his view twice more. Id.
Applicable Law
Unwarrantable Failure Violations
As the Commission has noted, “[t]he unwarrantable failure terminology is taken from
section 104(d) of the Act, 30 U.S.C. § 814(d), and refers to more serious conduct by an operator
in connection with a violation. In Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987), the
Commission determined that unwarrantable failure is aggravated conduct constituting more than
ordinary negligence. Unwarrantable failure is characterized by such conduct as “reckless
disregard,” “intentional misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. at
2002-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck
Creek Coal, Inc. v. MSHA, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission’s
unwarrantable failure test). Whether the conduct is “aggravated” in the context of unwarrantable
failure is determined by looking at all the facts and circumstances of each case, including (1)
the extent of the violative condition, (2) the length of time that it has existed, (3) whether the
violation posed a high risk of danger, (4) whether the violation was obvious, (5) the operator’s
knowledge of the existence of the violation, (6) the operator’s efforts in abating the violative
condition, and (7) whether the operator has been placed on notice that greater efforts are
necessary for compliance. Consolidation Coal Co., 35 FMSHRC 2326, 2330 (Aug. 2013), citing
Manalapan Mining Co., 35 FMSHRC 289, 293 (Feb. 2013); IO Coal Co., 31 FMSHRC 1346,
1350-57 (Dec. 2009); Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d on
other grounds, 195 F.3d 42 (D.C. Cir. 1999); see also Consol Buchanan Mining Co. v. Sec’y of
Labor, 841 F.3d 642, 654 (4th Cir. 2016). These factors must be viewed in the context of the
factual circumstances of a particular case. Consolidation Coal Co., 22 FMSRHC 340, 353 (Mar.
2000).” American Coal Co., 39 FMSHRC 8, 9 (Jan. 2017).

41 FMSHRC Page 296

Related to that is the subject of negligence, the Commission has noted that it “evaluates
the degree of negligence using “a traditional negligence analysis.” Mach Mining, LLC v. Sec’y of
Labor, 809 F.3d 1259, 1264 (D.C. Cir. 2016) (citation omitted). Because the Commission is not
bound by the Secretary’s regulations addressing the proposal of civil penalties as set forth in 30
C.F.R. Part 100, the Commission and its Judges are not required to consider the negligence
definitions in 30 C.F.R. § 100.3(d). Id. at 1263-64.
“Significant and Substantial” Violations
As the Commission has stated, a violation is S&S if, based on 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. See Cement Div., Nat’l Gypsum Co.,
3 FMSHRC 822, 825 (Apr. 1981). In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the
Commission further explained that in order to establish that a violation of a mandatory safety
standard is significant and substantial under National Gypsum, 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. Id. at 3-4 (footnote omitted);
accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v.
Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving Mathies criteria). See also, Consol
Pennsylvania Coal Co., 39 FMSHRC 1893, 1899 (Oct. 2017).
Flagrant Violations Under the Federal Mine Safety and Health Act
In discussing preliminary matters with the parties in chambers before the hearing in this
case began the Secretary indicated that he would proceed under a “repeat flagrant” theory of the
case, instead of a “reckless flagrant” theory. The Secretary reiterated this litigation position in his
opening statement. Tr. 15. The distinction between the two theories is more than academic, as
the Secretary has two potential pathways to demonstrate a “repeat flagrant” violation under
current Commission case law.
The flagrant violation provision is contained in Section 110(b)(2) of the Federal Mine
Safety and Health Act (“Mine Act”). The provision was added to the Mine Act by the Mine
Improvement and New Emergency Response Act of 2006 (“MINER Act”) in the wake of the
Sago Mine Disaster. Section 110(b)(2) provides that:
[v]iolations under this section that are deemed to be flagrant may be assessed a
civil penalty of not more than $220,000. For purposes of the preceding sentence,
the term “flagrant” with respect to a violation means a reckless or repeated failure
to make reasonable efforts to eliminate a known violation of a mandatory health
or safety standard that substantially and proximately caused, or reasonably could
have been expected to cause, death or serious bodily injury.
30 U.S.C. § 820(b)(2).

41 FMSHRC Page 297

The phrase “reckless or repeated failure” has been interpreted to encompass two types of
“flagrant” violations. The first is a “reckless flagrant” violation, where the operator failed to take
the steps a reasonably prudent operator would have taken to eliminate the known violation and
consciously or deliberately disregarded an unjustifiable, reasonably likely risk of death or serious
bodily injury. At hearing, the Secretary disclaimed his intent to pursue a reckless flagrant theory
at hearing on this matter. Accordingly, there is no purpose served for the Court to discuss the
reckless flagrant theory in greater detail here. Tr. 8.
As to a “repeated flagrant” violation, the Commission has established that can be proven
in two ways.
Commission Interpretations of “Repeated Flagrant” Violations Under Section
110(b)(2)
The Commission currently recognizes two methods that the Secretary may use to prove a
repeated flagrant violation under section 110(b)(2) of the Mine Act. The first approach – known
as the “narrow” approach, requires the Secretary to prove that “there was a single, continuing
violation serious in nature that the operator could or should have become aware of at some point,
i.e., known, such that it had multiple opportunities to address the condition, but did not avail
itself of those opportunities.” The American Coal Co., 38 FMSHRC 2062, 2065 (Aug. 2016)
(AmCoal). In AmCoal, the Commission declined to delineate exactly how many opportunities to
address the cited condition are necessary to prove a “repeated failure” under the narrow
approach. The Commission did however agree with the parties in AmCoal that “two or three
failures might amount to a flagrant violation in certain circumstances but not in others,
depending on the particular facts.” Id. at 2073. The principal difference between the “narrow”
and the “broad” approach is that, under the “narrow” approach, the operator’s past violative
history plays no role in determining whether an operator “had multiple opportunities to address
the condition.” Id. at 2065.
The second approach – known as the “broad” approach – permits the Secretary to prove
that the operator failed “to take reasonable steps” to eliminate a “serious, known violation” by
reference to the operator’s past violation history. The “broad” approach was first contemplated
by the Commission in Wolf Run Mining Co., 35 FMSHRC 536 (Mar. 2013) (Wolf Run). In Wolf
Run, the Commission reversed the Administrative Law Judge’s conclusion that past violative
conduct may not be considered in determining whether a cited condition satisfies the repeat
flagrant provision. However, the Commission did not articulate a standard for the Judge to apply
the “broad” approach on remand, leaving the issue of which prior violations were relevant to the
Judge’s discretion.

41 FMSHRC Page 298

While both the “broad” and “narrow” approaches remain valid under existing
Commission precedent, the Commission in AmCoal again expressly left the issue of how to
properly standardize the broad approach for another day, due to lack of consensus.15
Although the Secretary indicated that he intended to pursue this matter under a repeat
flagrant theory, he did not state if his arguments would be restricted to the “broad” or “narrow”
approaches. While both approaches remain valid under Wolf Run, the standard for utilizing the
“broad” approach to find a repeat flagrant violation is evolving. By contrast, the “narrow”
approach is largely settled Commission law under both Wolf Run and AmCoal.
Discussion
This case involves four distinct issues: whether the Respondent, Peabody Midwest
Mining, LLC, violated 30 C.F.R. § 75.202(a), by not supporting or otherwise controlling ribs in
certain identified entries on the MMU-002 and MMU-022 active working sections; whether the
alleged violation was “significant and substantial; whether such violation was an “unwarrantable
failure;” and finally, whether such violation constituted a “flagrant” violation under the Act.
The Court read and fully considered the contentions advanced in the parties’ post-hearing briefs.
That any particular contention raised in those briefs is not explicitly discussed does not mean that
it was not considered, but rather that the Court’s findings of fact and analysis implicitly
addresses the subject.
The Violation Was Established
The section 104(d)(2) Order, No. 9036925, alleged loose coal ribs in 13 entries on the
mine’s MMU-002 and MMU-022 active working sections. The Court finds that the testimony of
Inspector Fishback and that of Inspector Tisdale established that ribs in the cited areas were not
supported or otherwise controlled to protect persons from hazards related to falls of the ribs.
Accordingly, the violation was established. While the inspectors’ testimony was sufficient, it is
noted that Todd Seilhymer, who was the mine superintendent at that time, conceded that the
conditions cited by the inspector constituted a violation of the standard invoked, 30 C.F.R. §
75.202(a).
15

AmCoal produced three separate opinions on the issue of the “broad” approach.
Commissioners Cohen and Young concluded that the past history of similar violations was at
least “generally relevant to the determination of flagrancy," as “the essence of a repeated flagrant
violation is a condition which threatens miners with serious bodily injury or death and which has
been ignored or disregarded often enough to demonstrate intolerable irresponsibility.”
AmCoal, 38 FMSHRC at 2090. (Cohen, C., concurring, joined by Young, C.). Commissioners
Young and Cohen stated that “Judges should considerer allegations of repeated failure case-bycase, and should consider the operator’s history of violations where it may be probative of the
issue.” Id. at 2090-91. Commissioners Jordan and Nakamura would have declined to reach the
issue, as they concluded the conditions for a flagrant violation had already been satisfied under
the “narrow” approach to proving a repeat flagrant violation. Id. at 2094-95 (Jordan, C.,
concurring, joined by Nakamura, C.). Commissioner Althen would have disregarded the broad
approach entirely as unworkable, which would prevent the Secretary from ever considering an
operator’s past history of violations. Id. at 2099 (Althen, C., concurring in part).

41 FMSHRC Page 299

The Violation Was Significant and Substantial
With the violation established, the first Mathies element has been met. The second
Mathies element, a discrete safety hazard associated with the violation was also met, as the
Secretary observes, by “the fact it is well known that falling rib material presents a discrete
safety hazard to miners working underground.” Sec. Br. at 36. As the Secretary also notes,
“Section 75.202(a) is identified as a “Rule to Live By” standard, meaning it is one of the
standards most commonly contributing to fatalities in the mining industry. Thus, it is sufficient to
conclude that the violation contributed to a discrete safety hazard, as an inadequately supported
rib could fall, presenting a risk of injury to any miner who happened to be present upon the rib
falling. The American Coal Co., 36 FMSHRC 1311, 1326 (May 2014) (ALJ), Peabody Midwest
Mining LLC, 2019 WL 935968, at *9 (Feb. 2019) (ALJ). There is more to say. The Commission
in Newtown Energy, 38 FMSHRC 2033 (Aug. 2016) stated that, for the second prong of Mathies
to be satisfied, there must be “a determination of 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.” Id. at 2038. Given that the record
establishes that at least some of the ribs needed scaling, those conditions required prompt
attention, as the record also establishes that there was exposure to them. Respondent’s witness
Frederick himself, while affirming that he could not remove much of the rib Fishback identified
as a problem, acknowledged that some of the rib pieces were large – about two to four feet – and
that pieces that large could cause a serious injury. Tr. 355, 362. Thus, the discrete safety hazard
was not an academic exercise – it was reasonably likely that the hazard of a falling rib would
occur, given the circumstances of the violation in this case.
As for the third and fourth Mathies criteria: a reasonable likelihood that the hazard
contributed to will result in an injury, and a reasonable likelihood that the injury in question will
be of a reasonably serious nature, these elements are supported by the testimony of Inspector
Fishback. Miners regularly walked and worked in the area inspected by Fishback. Tr. 117, 175.
Assuming, as required by the Commission in Newtown Energy, that the hazard identified is a rib
fall, the presence of miners in the area makes it reasonably likely that the hazard contributed to
will result in an injury. This satisfies the third prong of Mathies. Further, based on at least some
number of the ribs for which he had safety concerns, the exposure to those concerns by miners in
those areas, and Fishback’s credible testimony that, if a miner were struck by a falling rib, the
injury would be of a reasonably serious nature, the fourth prong of Mathies was established.
Accordingly, Fishback’s order and accompanying testimony, supports his finding that the
violation was S&S. Tr. 115-119. That Inspector Tisdale credibly testified to observing material
from pried ribs falling into the travelway, at a time when the mine believed that the conditions
had been sufficiently addressed to warrant lifting the order, supports those elements as well.
The Violation Was Not an Unwarrantable Failure
As mentioned above, unwarrantable failure, is more than ordinary negligence, and has
been described as conduct involving “reckless disregard,” “intentional misconduct,”
“indifference,” or a “serious lack of reasonable care.” Viewing the credible testimony as a whole,
the Court cannot conclude that those terms apply in this instance. In reaching this conclusion, the
Court has considered all the facts and circumstances, including (1) the extent of the violative

41 FMSHRC Page 300

condition, (2) the length of time that it has existed, (3) whether the violation posed a high risk of
danger, (4) whether the violation was obvious, (5) the operator’s knowledge of the existence of
the violation, (6) the operator’s efforts in abating the violative condition, and (7) whether the
operator has been placed on notice that greater efforts are necessary for compliance.
Before specifically addressing those seven factors, the Court takes note of its previous
decision involving this mine, which addressed the same mud seam and the same section as in this
matter, together with the specific facts involved here. In that earlier decision, Peabody Midwest
Mining, LLC, 40 FMSHRC 87 (Jan. 2018) (ALJ),16 the Court determined that the violation did
not involve an unwarrantable failure by Respondent, Peabody Midwest. There, speaking to a
violation of the same standard, 30 C.F.R. § 75.202(a), this Court found that “the Respondent was
making some good faith efforts to address the ribs [and that] [t]o be fair, the mud seam was a
bedeviling situation; the conditions could change as that seam dried out and it was not entirely
unreasonable for miners to reach different conclusions about the timing of the need for action to
control the ribs.” Id. at 141, addressing Order No. 9036922. (emphasis added).
As discussed below, the Court believes that its previous analysis similarly bears upon the
unwarrantable failure claim in issue here. While the Court has determined that the standard was
violated, concluding that Inspector Fishback did observe areas of rib rash and broken rib
conditions, and that he found various rib cracks and that some of them were gapped and had rock
dust behind them, the unwarrantable failure issue is not similarly supported by the record.
For example, per the inspector’s testimony, the miner accompanying him, Mr. Hayden,
did not remain mute, but rather voiced that the mine had been prying on the ribs when Fishback
asserted otherwise. Further, Fishback, repeatedly responded, when asked if he saw anyone
working on the ribs during this time, that he could not remember such activity. Thus, he was
unable to deny that such activity was occurring.
Also supporting the Court’s determination that unwarrantability was not established is
that Fishback himself viewed the support for his order as resting upon the entirety of the rib
conditions he asserted finding that day. Thus, he did not commit that any single instance alleged
to have been found would constitute a violation. Tr. 100-101. It is also worth noting that,
regarding the many photographs he took that day, Fishback admitted that he could not detect
such material on the ground in the photos and counsel for the Secretary also stipulated that in
photos 1 through 22, 35, 36, and 53 through 55 of Ex. P-5, they do not show material on the
ground. Tr. 142-143.
Additionally, the issue of when a rib needs to be taken down is not always a simple
determination. There can be good faith differences on the timing for such action. Further, in the
Court’s view, that Fishback asserted by inquiring “don’t you think we need to pry some ribs
around here,” illustrates that whether a given rib needs immediate attention can be a subject of
legitimate debate. Tr. 113. As Inspector Tisdale’s testimony shows, while some ribs he viewed
came down easily, others required “effort to take them down.” Tr. 202.
16

The Court’s January 26, 2018 Peabody Midwest Mining LLC decision also
encompassed Docket No. LAKE 2016-0232, but none of the five orders in that docket involved
30 C.F.R. § 75.202(a), the standard in issue in this case.

41 FMSHRC Page 301

Zachary Hudson, a fill-in boss at the time in issue, testified along the lines of the
Respondent’s other witnesses – namely that the mud vein presented issues but that those ribs
which did need attention produced only small chunks of material. Tr. 283. He also was of the
view that a gapped rib was not necessarily indicative that it was loose in fact. Because there was
some past friction between Hudson and Fishback, the Court has relied more on the testimony of
the Respondent’s other witnesses in reaching its conclusions about the conditions. This does not
reflect disbelief over Hudson’s testimony. Rather, because other witnesses for the Respondent
support the Court’s conclusions, it is unnecessary to place great emphasis on Hudson’s
testimony.
Chase Reneer, a roof bolter on Unit 2 working the B crew at the time in issue, also
testified that the rib pieces that came out were only little pieces, nothing big. Tr. 319-321.
He too saw miners attending to rib issues through prying. Also, Reneer had a similar experience
to that expressed by other miners, in that upon Inspector Fishback identifying a problem rib, he
was unable to pry the rib down. Tr. 326-327. He also affirmed the incident that a rib identified as
a problem by Fishback could not be brought down by Frederick. Thus, Reneer’s testimony
supported the view that determining if and when a rib needs attention can be subject to good
faith differences. Applying that perspective, the mine applied a practice of trying to pry down a
suspect rib, but if it would not come down it was left alone for the time being.
Jonathan Butler, then working as a ventilation curtain operator in Unit 2, held to the
theme of many of the other witnesses for the Respondent, that the material which came down
from the ribs was small and flaky. Tr. 372. Similar to the other witnesses for the Respondent,
Butler expressed the view that sometimes it is premature to pry down a rib, that one doesn’t “go
just looking to pry stuff down if that’s not ready.” Tr. 373.
Todd Seilhymer also testified along the lines of the other witnesses for the Respondent,
asserting that the condition was primarily controlled by scaling and that most of the material
came out in small pieces. Tr. 398-399. He also stated that, when on the cited unit, he observed
miners performing scaling. Tr. 401. As with the other witnesses for the Respondent, Seilhymer
distinguished between cracks and gaps, with the latter needing prompt attention.
Upon considering the testimony of several of the Respondent’s witnesses and upon
concluding that, embellishments aside,17 they presented credible testimony regarding the general
condition of the ribs, the Court finds that there were legitimate differences of opinion as to the
condition of the ribs and whether those conditions required immediate attention or watchfulness.
17

Embellishments alone may not doom testimony. For example, the small, crumbly,
flaky material so uniformly testified about by the Respondent’s witnesses is at odds with the
amount of time it took to correct the rib issues and with the amount of material from those
activities that had been placed at the face but even that is not easily resolved. This is because of
testimony that the presence of the mud seam meant that one could pick at a rib and eventually
bring material down, sometimes with great effort. Once the order was issued the mine had to
make such efforts in order to resume production. Those efforts could have included ribs which
were difficult to take down, as the record reflects instances where Fishback required attention to
some ribs that required such efforts.

41 FMSHRC Page 302

For example, Winters, and several other witnesses for the Respondent, described relatively small
amounts of coal that came down with prying. Another example demonstrating that there can be
legitimate differences of opinion as to when a rib needed attention, Travis Hayden, section
foreman, presented the example of a rib that Inspector Fishback believed to be loose but that
Hayden was unable to bring it down. Tr. 246. A second instance was offered where Fishback
identified a rib he believed in need of attention, but the rib could not be pried. Tr. 256-258.
Hayden also stated that he identified instances to Fishback where scaling had been done but it is
noted again that the Secretary, who has the burden of proof, did not use the process of rebuttal
testimony to contradict such claims. Tr. 260.
Accordingly, when assessing credibility, the Court considered it to be important in this
matter that the Secretary did not, through rebuttal testimony, refute the many assertions made by
the Respondent’s witnesses. The Court cannot simply ignore those credible accountings, which
reflected a difference between a perceived rib condition requiring attention and one that in fact,
arguably, was premature for scaling.
Another example demonstrating that the mine was not ignoring the rib issue and therefore
of relevance to the unwarrantability issue, was that the mine also addressed the mud seam/rib
issue by shearing corners with a continuous miner, thereby cutting it at an angle. This practice
prevented such corners from falling out. Tr. 217. Also bearing on the unwarrantability issue,
Fishback acknowledged that the pre-shift and on-shift record books reflected that the production
crews had been prying down ribs. Tr. 115. It was unrebutted that that the mine always had a
person dealing with ribs full time on each shift. Tr. 214- 215.
Applying the seven factors, and speaking to the first four of them – (1) the extent of the
violative condition, (2) the length of time that it has existed, (3) whether the violation posed a
high risk of danger, and (4) whether the violation was obvious, there was credible, good faith,
disagreement between the government’s and respondent’s witnesses for each of those factors.
The same good faith disagreement was present as to factor (5) the operator’s knowledge of the
existence of the violation, because the condition of at least some of the ribs did not call for
scaling at that time. In such instances the existence of a violation was in issue. Factor (6), the
operator’s efforts in abating the violative condition, has been discussed and, similarly, the last
factor, (7), whether the operator has been placed on notice that greater efforts are necessary for
compliance, while notice was present, it was acted upon by the operator, and greater efforts were
made.
The Violation Was Not Flagrant
Because of the seriousness of an alleged flagrant violation, which encompasses a reckless
or repeated failure to make reasonable efforts to eliminate a known violation of a mandatory
health or safety standard that substantially and proximately caused, or reasonably could have
been expected to cause, death or serious bodily injury and because of the potential monetary
impact, since a civil penalty up to $220,000 may be imposed where a violation is established,
whether the alleged violation was flagrant is a notable issue.

41 FMSHRC Page 303

The Secretary’s Repeated, not Reckless, Flagrant Claim
As noted, the Secretary’s flagrant allegation rests upon a “repeated” failure theory, not
the reckless failure theory. The repeated failure theory can be established in two distinct ways.
There is the narrow approach, which is ahistorical, by showing either a single, continuing,
serious in nature, violation that the operator could or should have become aware of at some point
but, despite multiple opportunities to address the condition, the operator failed to take action.
The other is the broad approach, which is established by showing that the operator failed “to
take reasonable steps” to eliminate a “serious, known violation” by reference to the operator’s
past violation history.
The Narrow Repeated Claim
In this instance the narrow approach fails because there was not a single, continuing,
violation in the sense that the Court has not found that each rib described by the inspector was a
violation. Some conditions in the cited area violated the standard, but each rib presented its own
question. Thus, there was not a reflexive, required, remediating response for each location named
by the inspector. Some indeterminate number of the claimed violative conditions did not violate
the standard in the sense that scaling or some other action was not required then and there. The
credible testimony, as described above, establishes this determination by the Court.
In addition, some reasonable efforts were made by the mine operator to address the
effects of the mud seam, through scaling when the miners determined such action was needed,
by assigning one miner per shift devoted to rib safety and through the control method of shaving
corners.
Viewing the testimony overall, there is ample support for the conclusion that there could
be honest differences of opinion regarding whether and when action was needed for a given rib
location. That this was the case was shown by those instances when a rib was identified as a
problem by Inspector Fishback but which would not come down or would not come down
without unusual effort. Thus, in the Court’s view, based upon the record testimony, it was not
inherently unreasonable for a miner to conclude that a crack in a rib needed to be watched as
opposed to requiring immediate action. If the former situation obtained, immediate action would
not be required under the standard, as it requires ribs to be supported or otherwise controlled to
protect persons from hazards related to rib falls. The decision to designate a miner on each shift
to deal with rib issues in the cited area, a decision which came about because of an earlier order
addressing rib control, shows that the mine did not simply sit on its hands so to speak and ignore
rib control. This is not to say that there were no violations. There were and the Court has found
that that the violation was established, and that it was significant and substantial, though no
longer warranting the designation of a 104(d) order, as it lacked unwarrantability.
The Broad Repeated Claim
So too, the broad approach, viewing past violative conduct, in order to establish a flagrant
violation comes up short, because the Court in this instance and in an earlier instance entailing a
decision involving the same mud seam area, determined that there was no unwarrantable failure

41 FMSHRC Page 304

involved. Given the near identity of the conditions in the prior decision and in this instance, it
would be anomalous to conclude that the earlier instance, which was not an unwarrantable
failure, grew into an unwarrantable failure here, especially where the mine operator took action
after the earlier instance by assigning a designated miner on each shift to address rib control.
Beyond the analysis set forth above, the Court observes that reaching the question of
whether a violation is flagrant contemplates a progression – one does not advance to a
determination of whether an alleged violation is flagrant unless it is first determined that there
was a violation, that it was significant and substantial and that it was an unwarrantable failure.
Finding that there was no unwarrantable failure precludes a finding that a violation is flagrant. In
other words, with no unwarrantable failure established, one cannot reach the issue of a flagrant
violation, as such conduct is a step beyond that.
The Commission has previously stated that a Commission Judge is required to convert a
104(d)(1) order to a 104(a) citation where the order “lacked the required bases to stand as either
a section 104(d)(1) order or 104(d)(1) citation.” Lodestar Energy, Inc., 25 FMSHRC 343 (July
2003); Cyprus Cumberland Res. Corp., 21 FMSHRC 722, 725 (July 1999). As the Court
determined, for the reasons described above, that Order No. 9036922 lacked the unwarrantable
failure necessary to sustain a citation or order under section 104(d), it is concluded that Order
No. 9036922 must be modified to a 104(a) citation.
Penalty Determination
Overview of Penalty Assessments
As this Court noted in its decision in Peabody Midwest Mining LLC, 2018 WL
816286 (Feb. 2018) (ALJ):
In assessing civil monetary penalties, Section 110(i) of the Act requires that the
Commission 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).
As the Commission has noted, “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. Douglas R. Rushford Trucking, 22
FMSHRC 598, 601 (May 2000).” Knight Hawk Coal, LLC, 38 FMSHRC 2361,
2373 (Sept. 2016).
That said, the Court recognizes that there are two important considerations that
must be evaluated; the Secretary’s burden to provide sufficient evidence to
support the proposed assessment; and the Court’s obligation to explain the basis
for any substantial divergence from the proposed amount. The Commission has

41 FMSHRC Page 305

noted that the “Secretary [ ] does bear the ‘burden’ before the Commission of
providing evidence sufficient in the Judge’s discretionary opinion to support the
proposed assessment under the penalty criteria [and that] [w]hen a violation is
specially assessed that obligation may be considerable. [On the other hand] the
Secretary’s proposed penalty cannot be glided over, as the Commission also
stated, ‘Judges must explain any substantial divergence between the penalty
proposed by MSHA and the penalty assessed by the Judge. … 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. [The American
Coal Co., 38 FMSHRC 1987, 1993-1994 (Aug. 2016)], (citing Sellersburg Stone
Co., 5 FMSHRC 287, 293 (Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984)).”
Consolidation Coal Co. 38 FMSHRC 2624, 2643-2644 (Oct. 2016) (ALJ Moran).
Id. at *51-52.
Further, the Commission has recognized that in assessing a civil penalty, a Judge
is not required to assign equal weight to each of the penalty assessment criteria. Rather,
“[j]udges have discretion to assign different weight to the various factors, according to
the circumstances of the case.” Lopke Quarries, Inc., 23 FMSHRC 705, 713 (July 2001).
… Indeed, the Commission has held that Judges have not abused their discretion by more
heavily weighing gravity and negligence than the other penalty criteria. Knight Hawk
Coal, LLC, 38 FMSHRC 2361, 2374 (Sept. 2016); Signal Peak Energy, LLC, 37
FMSHRC 470, 485 (Mar. 2015).
Penalty Assessment for the Former 104(d)(2) Order, Now Modified to a 104(a)
Citation, No. 9036925
As noted, the Secretary has alleged that Order No. 9036925, a section 104(d)(2) order,
was an unwarrantable failure and a significant and substantial violation of 30 C.F.R. § 72.202(a),
and that it was also a repeat flagrant violation pursuant to the MINER Act, under 30 U.S.C. §
820(b)(2), for which, on those grounds, he sought the assessment of a civil penalty in the amount
of $165,700.00.
Based upon the record evidence and discussion thereof, the violation and its significant
and substantial nature have been upheld, but the unwarrantable failure and flagrant designations
no longer stand. The same mud seam, as described in the Court’s February 2018 decision,
remained a bedeviling situation, but Peabody did not simply continue with business as usual
following that earlier litigation, as it assigned an individual each shift solely to deal with the ribs
impacted by the mud seam.
Could the mine have done better? The answer to that question is definitely “yes,” as
reflected by the fact that some, but not all, of the amount of material that was scaled following
the issuance of the order. Given the mud seam, the credible testimony was that if one were to
work at rib issues long enough some material would come down. The unrebutted testimony is
that some of the ribs identified by the inspector as needing scaling then and there, in fact did not

41 FMSHRC Page 306

need attention at that time, as reflected by this Court’s finding that, in some instances the
material would not come down and in some instances only small amounts came down from such
efforts.18 Thus, the Court has found that there could be honest differences of opinion as to
whether a particular rib was in need of, that is to say, ripe for, immediate attention or whether it
was premature to act.19
The Court considers it significant that, in the face of testimony from multiple witnesses
for the Respondent testifying about disagreements as to whether a given rib location was ripe for
scaling and the lack of success, in some instances, to achieve results from scaling attempts, the
Secretary did not recall any witness, and particularly did not recall Inspector Fishback, to
challenge the Respondent’s claims.
Had Order No. 9036925 been regularly assessed, the proposed penalty would have been
$44,645.00. Respondent’s post-hearing brief at page 58 n.60. The Secretary has agreed this
figure is correct. However that calculation assumed that the violation was an unwarrantable
failure, and involved high negligence, neither finding to which the Court subscribes. See Order
No. 9036925 and associated “Narrative Findings for a Special Assessment.” (“Narrative”).
As the Court has determined that the principal bases for specially assessing this violation
– specifically, the flagrant designation and the unwarrantable failure designation – are
inappropriate in the Court’s appraisal of the facts and application of the law, it concludes that in
this case the proper baseline for the Sellersburg substantial deviation requirement, as described
above, is the violation as it would have been calculated under the regular assessment formula
which would have been $44,645.00.
The Penalty Criteria as Applied to this Matter.
The operator’s history of previous violations, and the appropriateness of such penalty to
the size of the business of the operator charged were set forth in the Narrative and they are not in
dispute. The mine is large, measured by both its size and the controlling entity’s size.
The history of violations per inspection day and repeat violations were on the high end.
The effect on the operator’s ability to continue in business is not in dispute and, even had the
Court adopted the proposed penalty for the alleged flagrant violation, would not impact that
criterion in this instance.20 The mine operator clearly demonstrated good faith in attempting to
achieve rapid compliance after notification of a violation.
18

On the issue of the extent of material produced through scaling, recall that Counsel for
the Secretary stipulated that photos 1 through 22, 35, 36, and 53 through 55 in Exhibit P-5 do not
show material on the ground. Tr. 143.
19

The Court hopes that the message from this decision to Peabody, and perhaps
more importantly to its miners, is not that ribs may be viewed with casualness and that the
efforts being made sufficed. Such an attitude would be misguided, and only invite serious
injury or worse.
20

The parties stipulated that payment by Respondent of the proposed penalty of
$165,700.00 would not affect Respondent’s ability to remain in business. Tr. 10.

41 FMSHRC Page 307

That leaves gravity and negligence for discussion. As for gravity, based on the credible
evidence of record, the Court finds that it was reasonably likely for an injury to have occurred.
The injury, should one have occurred, fell between lost workdays or restricted duty and
permanently disabling. For those reasons, the Court concludes the Secretary correctly determined
that the violation was significant and substantial, and upholds the Secretary’s designation.
As for negligence, as explained above, the Court finds that it was moderate, but did not
constitute an unwarrantable failure. A corresponding downward departure from the regularly
assessed penalty of $44,645.00 is therefore warranted.
For those reasons, upon application of the statutory penalty criteria, and consistent with
the credible evidence of record, the Court imposes a penalty of $40,000.00 for this violation,
Order No. 9036925, an amount which the Court considers to be both an appropriate, and
significant, penalty under the circumstances. Order No. 9036925 is also modified to a section
104(a) citation.
Summary
It is ORDERED that, as it is not an unwarrantable failure, Order No. 9036925 is MODIFIED
to a Section 104(a) citation.
It is further ORDERED that, within 30 days of this order, Respondent pay a penalty of
$40,000.00 for this violation.
Upon receipt of the sum of $40,000.00, this case is DISMISSED.

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

Distribution:
Edward V. Hartman, Esq., U.S. Department of Labor, Office of the Solicitor, 230 S. Dearborn
St., 8th Floor, Chicago, IL 60604
Arthur Wolfson, Esq., Fisher & Phillips LLP, One Oxford Center, 301 Grant St., Suite 4300
Pittsburgh, PA 15219

41 FMSHRC Page 308

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

May 24, 2019
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. LAKE 2019-0025
A.C. No. 47-02926-474835

v.
YAHARA MATERIALS, INC.,
Respondent

Mine: Unit No. 7

ORDER ACCEPTING APPEARANCE
DECISION APPROVING SETTLEMENT
ORDER TO MODIFY
ORDER TO PAY
Before: Judge McCarthy
This case is before the undersigned upon a 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).
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 penalty
from $2,361.00 to $286.00. The CLR also requests that Citation No. 8956042–the sole citation in
this matter–be modified to change the type of action from a section 104(d)(1) citation to a section
104(a) citation, and to reduce the level of negligence from high to moderate.
The citation alleges that the operate violated 30 CFR § 56.9300a by failing to provide a
berm at a dump site. The Respondent, as part of the motion, alleges that there was always a
spotter at the dump site and, in direct contradiction to the citation, that there were berms.
On February 13, 2019, the undersigned’s law clerk requested further information in light
of the apparent contradiction between the motion and the citation. The law clerk also inquired as
to whether the inspector took any photographs of the missing berm. Although first indicating on
February 13, 2019 that he was going to file an amended motion, the CLR responded on
February 21, 2019 that the Petitioner was going to rely on the motion as submitted. The CLR
also indicated that the inspector had taken photographs, but that they would not be provided to
the undersigned.

41 FMSHRC Page 309

Although Petitioner presents sufficient support for resolving the motion, Petitioner’s
failure to produce the requested clarification and documentary evidence is troubling. When an
ALJ requests further information concerning a motion, it is usually an indication that there is
insufficient support to grant that motion or, at the very least, a proper resolution is not clear from
the motion as submitted. Ignoring such requests risks the denial of the motion. See American
Aggregates of Michigan, Inc., Unpublished Order (May 24, 2019) (denying motion for
settlement based on lack of probative factual support).
However, as the undersigned ultimately resolves this motion without receiving the
requested information–and the issue of producing evidence in support of a motion for settlement
is already pending before the Commission on assignments of error to Solar Sources, Inc.,
39 FMSHRC 2052 (Nov. 2017) (ALJ)–this is not the appropriate case to discuss this matter
further.
The undersigned has considered the representations and documentation submitted in this
case, and the undersigned concludes that the proffered settlement is fair, reasonable, appropriate
under the facts, and protects the public interest under The American Coal Co., 38 FMSHRC
1972, 1976 (Aug. 2016), and is appropriate under the criteria set forth in section 110(i) of the
Act.
WHEREFORE, the motion for approval of settlement is GRANTED.
It is ORDERED that Citation No. 8956042 be MODIFIED to change the type of action
from a section 104(d)(1) citation to a section 104(a) citation, and to reduce the level of
negligence from high to moderate.
It is further ORDERED that the operator pay a penalty of $286.00 within thirty days of
this order.1

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

1

Payment should be sent to: Mine Safety & Health Administration, U.S. Department of
Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.

41 FMSHRC Page 310

Distribution:
Daniel J. Goyen, U.S. Department of Labor, MSHA, 515 West First Street, Room 323, Duluth,
MN 55802
Erik Dullea, Husch Blackwell LLP, 1801 Wewatta Street, Suite 1000, Denver, CO 80202
/ztb

41 FMSHRC Page 311

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

June 11, 2019
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. VA 2012-0042
A.C. No. 44-04856-269664

v.
CONSOL BUCHANAN MINING
COMPANY, LLC,
Respondent.

Mine: Buchanan Mine #1

DECISION AND ORDER
Before: Judge Rae
I.

STATEMENT OF THE CASE

This matter arises from a petition for assessment of civil penalty filed by the Secretary of
Labor (“the Secretary”) pursuant to the Federal Mine Safety and Health Act of 1977, as
amended, (“the Mine Act”) 30 U.S.C. § 815(d). A hearing was held in Kingsport, Tennessee on
November 18, 2014, after which the parties submitted post-hearing briefs (“Post-Hr’g Br.”). I
rendered a Decision and Order after hearing, assessing the propriety of three citations and their
respective S&S designations, contained in Docket Numbers VA 2012-0042 and VA 2013-0192.
Sec’y of Labor v. Consolidation Coal Co., 37 FMSHRC 2396 (Oct. 2015)(ALJ) (“Consolidation
Coal”). In relevant part, I held that Citation No. 8189820, contained in Docket Number VA
2012-0042, was properly issued for a violation of Respondent’s roof control plan, but was not
properly designated as S&S.
The Secretary appealed my removal of Citation Number 8189820’s S&S designation to
the Commission which affirmed the removal of the S&S designation in a split decision. Sec’y of
Labor v. Consolidation Coal Co., 39 FMSHRC 1737 (Sept. 2017) (“Comm’n Decision”). The
Secretary then appealed the Commission’s affirmation to the D.C. Circuit, which vacated the
removal of the S&S designation and remanded this matter for further consideration consistent
with its instructions. Sec’y of Labor v. Consolidation Coal Co., 859 F.3d 113, 119 (2018) (“D.C.
Cir. Decision”). Specifically, the D.C. Circuit instructed that I consider whether Citation Number
8189820 is properly designated as S&S without considering redundant safety measures or miner
precaution. Id.

41 FMSHRC Page 312

II.

BACKGROUND AND FACTS OF THE VIOLATION

On remand, the factual record established and credited in my original opinion remains
undisturbed. Citation Number 8189820 was issued by Mine Safety and Health Administration
(“MSHA”) Inspector William G Ratliff1 on July 14, 2011 at the Buchanan Mine #1, a large
underground coal mine located in Buchanan County, Virginia. The parties have stipulated to the
following relevant facts:
1. During all times relevant to this matter, Consolidation Coal Company (“Respondent”)
was the operator, as defined in Section 3(d) of the Mine Act, 30 U.S.C. § 802(d), of the
Buchanan No. 1 mine, Mine ID No. 44-04856.
2. The Buchanan No. 1 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 material times involved in this case, the products of the Buchanan No. 1 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. Respondent is large in size, having produced 5,654,353 tons of coal at its Buchanan No. 1
mine in 2011 and 3,506,216 tons in 2012.
5. The proceeding is 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 and 823.
6. MSHA Inspector William G. Ratliff, whose signature appears in Block 22 of Citation
Numbers 8189820, was acting in his official capacity as an authorized representative of
the Secretary of Labor when they issued the citations.
7. The citation at issue in this proceeding was properly served by a duly authorized
representative of the Secretary of Labor, MSHA, upon an agent of Respondent.
8. The proposed penalty for Citation Number 8189820 will not affect Respondent’s ability
to continue in business.
Jt. Ex. 1; Tr. 6.2

1

Inspector Ratliff has worked for MSHA as a coal mine inspector since February 2008.
He worked in the mining industry as an equipment operator, shop foreman, and fireboss for
roughly 24 years before being hired by MSHA in 2007 and subsequently completed
approximately one year of field training and coursework at the Mine Academy to become
certified as an inspector. He cumulatively had about 28 years of experience in the mine industry
at the time he issued Citation Number 8189820. Tr. 225–26.
2

In this decision, the abbreviation “Tr.” refers to the transcript of the hearing. The
Secretary’s exhibits are numbered S-1 to S-11 and Respondent’s exhibits are numbered R-3 and
R-4.

41 FMSHRC Page 313

Citation Number 8189820 alleges that Inspector Ratliff observed a cut that exceeded the
maximum cut length allowed by the mine’s roof control plan in violation of § 75.220(a)(1).3 Ex.
S-6. Specifically, Part 1, Section K, Subsection K.7 of the mine’s approved roof control plan
limits cut depth to 20 feet in areas of the mine evidencing adverse roof conditions. Ex. S-8 at 4.
The extended cut was taken in a crosscut in from the No. 3 to the No. 2 entry. Id. As the
continuous miner began to breach the rib of the No. 2 entry, creating an eight-foot hole, the
remainder of the roof collapsed onto the continuous miner. Tr. 267–68.
Inspector Ratliff issued Citation Number 8189820 at approximately 5:00 AM after
traveling to the mine to investigate an unrelated complaint on the morning of July 14, 2011.
While traveling the 17 Right development panel accompanied by Company Safety Inspector
Robert Baugh, Inspector Ratliff encountered adverse roof conditions and a cut that he suspected
exceeded 20 feet in length. Tr. 286, 229. By the time Inspector Ratliff’s arrived at the extended
cut, miners were in the process of bolting the unsupported roof using six-foot resin bolts, a
longer bolt than is normally used in this mine. Tr. 241, 259–60. The miners were bolting in a
tighter pattern that required by the mine’s roof control plan, installing additional rows of bolts
between the regularly spaced bolt-rows. Tr. 312–13. Inspector Ratliff waited until the miners
finished bolting the entire cut through to the No. 2 entry before measuring the length of the cut
the next day. Tr. 229–30, 244.
In my initial decision, I found that the cut was between 22 and 23.5 feet in length, as
measured from the last row of roof bolts installed prior to the cut, and constituted a violation of
§ 75.220(a)(1). Consolidation Coal, 37 FMSHRC 2396, 2409. This holding was not challenged
on appeal. See Comm’n Decision, 39 FMSHRC 1737; D.C. Cir. Decision, 859 F.3d 113.
III.

LEGAL PRINCIPLES

A violation is S&S if the violation is “of such nature as could significantly and
substantially contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C.
§ 814(d). A S&S designation is appropriate “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.” Sec’y of Labor v. Cement Div., Nat'l Gypsum
Co., 3 FMSHRC 822, 825 (Apr. 1981) (“Nat'l Gypsum Co.”).
In Mathies Coal Company, the Commission set forth the following four-part test to
determine whether a violation is properly designated as S&S:
In order to establish that a violation of a mandatory safety standard
is significant and substantial under National Gypsum, the Secretary
of Labor must prove: (1) the underlying violation of a mandatory
3

The cited standard, § 75.220(a)(1), operates as a mandatory safety standard and
provides in pertinent part: “Each mine operator shall develop and follow a roof control plan,
approved by the District Manager, that is suitable to the prevailing geological conditions, and the
mining system to be used at the mine.” 30 C.F.R. § 75.220(a)(1); Sec’y of Labor v. Martin
County Coal Corp., 28 FMSHRC 247, 252 (May 2006).

41 FMSHRC Page 314

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) (“Mathies”); accord Buck Creek Coal, Inc. v. FMSHA, 52 F.3d
133, 135 (7th Cir. 1995) (“Buck Creek”); Austin Power, Inc. v. Sec'y of Labor, 861 F.2d 99, 103
(5th Cir. 1988); Consolidation Coal Co. v. FMSHRC, 824 F.2d 1071, 1075 (D.C. Cir. 1987). It is
“well established that the burden of establishing S&S rests on the Secretary[.]” Sec’y of Labor v.
Topper Coal Co., 20 FMSHRC 344, 378 (Apr. 1998) (citing Mathies, 6 FMSHRC at 3-4).
The Commission later clarified the relationship between the second and third steps of the
Mathies’ analysis.4 Sec’y of Labor v. Newtown Energy, Inc., 38 FMSHRC 2033, 2037-38 (Aug.
2016) (“Newtown”). After the judge identifies the hazard at issue, step two requires a judge
assess “whether the violation sufficiently contributed to that hazard.” Id. at 2038. Specifically,
the Commission clarified that “the second step requires a determination of 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.” Id. If the
violation sufficiently contributes to the occurrence of the hazard under step two, “the Judge then
assumes such occurrence” for the analysis of step three. Id. Step three is satisfied if, based upon
the particular facts surrounding the violation, the occurrence of that hazard “would be reasonably
likely to result in an injury.” Id.
Analysis of the likelihood of injury step is conducted assuming “continued normal
mining operations.” Sec’y of Labor v. U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July
1984). Specifically, in assessing whether a hazard poses a reasonable likelihood of injury, judges
consider “the length of time that the violative condition existed prior to the citation and the time
it would have existed if normal mining operations had continued.” Sec’y of Labor v. Black
Beauty Coal Co., 34 FMSHRC 1733, 1740 (Aug. 2012); Secy of Labor v. Rushton Mining Co.,
11 FMSHRC 1432, 1435 (Aug. 1989). Additionally, analysis of the likelihood of injury should
not rely on the expectation that miners will protect themselves. Newtown, 38 FMSHC at 2044;
see also Sec’y of Labor v. Eagle Nest, Inc., 14 FMSHRC 1119, 1123 (July 1992) (“We reject the
judge’s conclusion that the ‘exercise of caution’ may mitigate the hazard.”). Similarly, analysis
of the likelihood of injury under step three cannot consider the mitigating effects of redundant
safety measures. Secretary of Labor v. Black Beauty Coal Co., 38 FMSHRC 1307, 1313-14
(June 2016); Sec’y of Labor v. Cumberaland Coal Res., 717 F.3d 1020, 1029 (D.C. Cir. 2013)
(“Cumberland Coal Res.”); Buck Creek, 62 F.3d at 136. Lastly, the Commission has recognized
that an MSHA inspector's judgment is “an important element of an S&S determination.” Wolf
Run, 36 FMSHRC 1951, 1959; Mathies, 6 FMSHRC at 5.

4

The S&S determination must be based on the particular facts surrounding the violation
at issue. Sec’y of Labor v. Peabody Coal Co., 17 FMSHRC 508, 511-12 (Apr. 1995); see, e.g.,
Sec’y of Labor v. Wolf Run Mining Co., 36 FMSHRC 1951, 1957–59 (Aug. 2014) (“Wolf Run”).

41 FMSHRC Page 315

IV.

ADDITIONAL FINDINGS OF FACT

In my initial Decision, I held that the first and second steps of the Mathies test were
satisfied, which was not challenged on appeal. Consolidation Coal, 37 FMSHRC 2396, 2409.
With respect to the third step of Mathies, I held that the Secretary had not satisfied his burden of
establishing that a roof fall caused by the extended cut was reasonably likely to injure a miner.
Id. at 2410. I relied on: (1) the length of time the violative condition would exist in the context of
continued mining operations; (2) the use of longer roof bolts and a tighter bolting pattern; (3) the
use of an automated temporary roof support system (“ATRS”); and (4) the fact that miners
would not go into the unbolted “red zone.” Id. at 2409–2410. The D.C. Circuit remanded the
issue of whether a roof fall would be reasonably likely to injure a miner with instructions that I
not consider the ATRS or miner precaution in my analysis.5 D.C. Cir. Decision, 895 F.3d 113,
119–20.
The issue of whether a roof fall caused by the extended cut was reasonably likely to
injure a miner cannot be discussed until the relevant facts have been culled from the record.
Specifically, the Secretary initially argued in his Post-Hearing Brief that a “roof fall would carry
back through the adverse conditions to the previous cut where [examiners, car operators, and
roof bolters] were working.” Sec’y’s Post-Hr’g Br. at 26. However, the Secretary conceded that
5

The D.C. Circuit directed that settled Commission case law prohibits consideration of
redundant safety measures in Mathies step three. Accordingly, I do not consider redundant safety
measures in this decision. However, the D.C. Circuit specifically noted that it did not address
whether redundant safety measures could be considered in Mathies step two. D.C. Cir. Decision,
859 F.3d 113, 120. I share similar reservations on the blanket refusal to consider compliance
with relevant safety measures in any point in an S&S analysis. The policy concern associated
with crediting the mitigating effects of redundant safety measures in a S&S analysis recognizes
that “[i]f mine operators could avoid S&S liability . . . by complying with redundant safety
standards, operators could pick and choose the standards with which they wished to comply.”
Knox Creek Coal Corp. v. Sec’y of Labor, 811 F.3d 148. However, this analysis cuts both ways.
Disregarding the effect of redundant safety measures once a hazard has manifested may promote
general compliance with safety standards. However, disregarding compliance with safety
measures aimed at preventing hazards from manifesting in the first place would, in effect, punish
operators for general compliance with such standards by subjecting them to S&S liability.
Crediting standards which reduce the likelihood of hazards in occurring in Mathies step two
would comport with the Mine Act’s objective of removing hazards from mining environments
while not providing complete defense to S&S liability by allowing operators to assume away any
resultant harm in Mathies step three. It is also questionable as to which safety measures should
be considered secondary or redundant. The use of ATRS is not similar to a fire extinguisher or a
fire retardant belt. As Commissioners Young and Althen point out in their opinion, the
“Automated Temporary Roof Support was not in any sense of the word a ‘redundant’ safety
feature. Such support was a required and accepted aspect of the roof plan. Failure to use it would
have been a violation; certainly, actual use of the prescribed roof control device bears upon the
reasonably likely result of a roof fall.” Consolidation Coal Co., 39 FMSHRC 1737, 1751-52
(Sept. 2017). To hold otherwise would lead to absurd results. The Court of Appeals is simply
incorrect in its application of this principle as it applies to the instant case.

41 FMSHRC Page 316

while “a roof fall did occur after the majority of the cut was competed” it did not carry back and
“break through the bolts in this instance [but] it could have.” Id. Accordingly, at the time of my
initial decision, it was undisputed that a roof fall did not break through into the bolted area where
iners were working. Therefore, there was no need to make a finding on whether a roof fall broke
into the bolted area at the time I rendered my initial decision.
The Secretary maintains his theory, in his Brief on Remand (“Remand Br.”), that a “roof
fall that broke through the bolts” would injure a miner. Sec’y’s Remand Br. at 7. However, the
Secretary now argues, for the first time before me, “part of the roof actually fell and broke back
through the bolts after the deep cut was made.”6 Id. I am not aware how the factual record could
have possibly changed between the time I rendered my initial decision to when this matter was
remanded to me from the D.C. Circuit. Nonetheless, it is now necessary to address the
Secretary’s newfound interpretation of the record.
The Secretary cites three points of testimony to support the assertion that a roof fall broke
back through into and damaged the last row of bolts in the previously roof bolted area. First, the
Secretary selectively cites to the testimony of Inspector Ratliff. Id. at n. 46. Inspector Ratliff did
testify that the “cut actually fell out rock.” Tr. 252. However, the Secretary attempts to conflate
the roof fall that occurred at the opposite end of the extended 22 to 23.5 foot cut with a roof fall
in the bolted area. This is a strained interpretation of Inspector Ratliff’s testimony as Ratliff
referenced the roof fall and said, “[y]ou’ve got quite a bit of rock. . .if this breaks around your
roof bolts,” thereby acknowledging that a the referenced “fell out rock” did not actually break
around the roof bolts. Tr. 252.
Furthermore, Inspector Ratliff testified specifically that “[t]he roof had not
fallen in the area where these bolts were at.” Tr. 234. With respect to the row of
damaged roof bolts and location of the rock fall, Inspector Ratliff said:
The bolts were cut, folded over, damaged, the plates were missing,
indicates that the miner cut the bolts out instead of the rock fall,
which there was no rock that had fallen right there at this location.
It was further into the cut. It indicated that the miner cut them out.
Tr. 234. In sum, Inspector Ratliff’s testimony is consistent with the Secretary’s previous position
that a rock fall did not occur in the bolted area.
Next, the Secretary cites to the testimony of Terry Hamilton, the Section Foreman of the
17 Right development panel at the time the extended cut was taken. Sec’y’s Remand Br. at 7,
n. 46. When asked if there he noticed a problem with the last row of roof bolts after the rock fall,
Hamilton responded, “it had fell and I guess, dislodged a couple of bolts[.]” Tr. 269 (emphasis
added). However, in his very next statement Hamilton stated, “I can’t remember exactly if it
6

The Secretary first made this argument that a roof fall broke back into the roof-bolted
area on appeal to the Commission, which Commissioners Althen and Young refused to address
because the Secretary did not raise advance this argument at the trial level. Comm’n Decision, 37
FMSHRC 1737, 174–48.

41 FMSHRC Page 317

would have been the miner done it or rock fell around it or what.” Id. Hamilton’s testimony
indicates that the last row of bolts in the bolted area included damaged bolts.7 However, it is
ambiguous as to whether they were damaged by a rock fall or by mining operations.
Lastly, the Secretary cites to the testimony of Safety Inspector Baugh. Sec’y’s Remand
Br. at 7, n. 46. When asked if the roof fall damaged the last row of bolts he replied “right.” Tr.
293. However, on the previous page of testimony Bough testified that “one of [the bolts] was
damaged by the miner” and that based on his memory, “three of [the bolts] were damaged when
the place fell.” While this testimony attributes some of the damaged bolts to a roof fall, it does
not indicate that the roof fell within the bolted area nor is it as detailed as Inspector Ratliff’s
description of state of the damaged bolts and his explanation of how they became damaged.
Additionally, and as the Secretary acknowledges, Inspector Ratliff’s testimony should be
afforded great weight due to his training and experience. See Sec’y’s Remand Br. at 8. Due to the
detailed and unequivocal nature of Inspector Ratliff’s testimony as well as his training and
experience, I credit Inspector Ratliff’s testimony that a roof fall did not occur in or break back
into the bolted area.
V.

ANALYSIS

The issue before me on remand is whether the Secretary has established by a
preponderance of the evidence, considering the facts and circumstances surrounding the violation
in the context of continued mining operations, that a roof fall was reasonably likely to break back
into the bolted area and injure a miner.8 If so, then the inquiry turns to whether the resulting
injury would be of a reasonably serious nature pursuant to Mathies step four. However,
consideration of the fourth step of Mathies is unnecessary, as the Secretary has failed to meet his
burden in demonstrating that a roof fall was reasonably likely to break back into the bolted area
and injure a miner.
First, as noted in my initial decision, the Mine was using resin bolts installed in a tighter
bolting pattern than was required by the roof plan. Tr. 260, 312–13. In addition, the bolts used in
the extended cut were six feet in length - longer than those normally utilized in Buchanan Mine
7

Although the last row of roof bolts included damaged bolts, the damage to the bolts did
not affect their structural integrity of their effectiveness in supporting the roof strata. Tr. 261.
8

The Secretary does not argue that injury would result from the roof falling on miners
working under unsupported roof outside of the roof-bolted area, nor would that be appropriate
under settled Commission case law. See Sec’y of Labor v. FMSHRC, 111 F.3d 913, 917-18 (D.C.
Cir. 1997) (Holding that the Secretary is not to consider “nonviolative surrounding conditions” in
analyzing whether a violation significantly and substantially” contributes to a hazard.); see also
Cumberland Coal Res., 717 F.3d 1020, 1028 (Stating that “decision makers should not consider
facts unrelated to the violation when undertaking a significant and substantial evaluation.”).
Accordingly, and consistent with the D.C. Circuit’s remand instruction, miner precaution and
Respondent’s use of an ATRS is irrelevant to analysis of the Secretary’s argument before me—
that a roof fall would break back into the roof-bolted area and injure a miner—and therefore is
not discussed herein.

41 FMSHRC Page 318

#1. Tr. 260. Employing a tighter bolting pattern and switching to longer bolts in the extended cut
reduced the likelihood that a roof fall in the unbolted area would destabilize the roof of
previously bolted cut or the newly bolted roof established as the bolting crew advanced.
Second, as also noted in my initial decision, the violative condition was in the process of
being corrected when Inspector Ratliff observed the extended cut. Tr. 253. The cut was fully
bolted by the time Inspector Ratliff returned the next day to measure the extended cut. Tr. 244,
280. Accordingly, the relatively short period of time that the roof was left unbolted lessens the
chance that additional roof falls would occur in the remaining unbolted area, let alone break back
into the bolted area.
Third, it is significant that Inspector Ratliff allowed the miners to continue roof bolting
the extended cut to completion when he observed the condition. As recognized by the
Commission, an inspector’s judgement is “an important element of an S&S determination.” Wolf
Run, 36 FMSHRC 1951, 1959. Inspector Ratliff was aware of the adverse roof conditions and
believed the cut was of impermissible length at the time he allowed roof bolting to continue. Tr.
252. The Secretary’s theory that a roof fall was reasonably likely to break back through the
bolted area and injure a miner is inconsistent with Inspector Ratliff’s decision to allow roof
bolting to continue through the entirety of the extended cut. Otherwise, Inspector Ratliff’s
decision to let bolting continue would be tantamount to allowing continued exposure of the
bolting miners to a reasonable likelihood of reasonably serious harm.9
Fourth, roof falls occur in the regular course of mining operations as recognized by the
Buchanan Mine #1’s approved ventilation plan. See Ex. S-3, pt. 1at 1. In the context of a cross
cut as is at issue here, the greatest amount of stress rests on the intersection of the cuts over 20
feet away from the bolted area - where the extended cut intersected with the No. 2 entry. Tr. 251;
Ex. R-3 at 5. It follows that, if a roof fall is to be assumed in assessing the likelihood of injury,
this is the area that a roof fall is most likely to, and did, occur. However, the record contains no
evidence that the roof fall that occurred in the final feet of the extended cut was caused by the
extended cut.10
Fifth, the Secretary fails to provide any explanation as to why it is reasonably likely a
roof fall at the intersection with the No. 2 entry would travel back into the roof-bolted area
besides first alleging it “could happen” and now alleging it did happen. The Secretary does not
point to any testimony on the record, expert or otherwise, explaining how characteristics of the
cut structure and roof composition would make a roof fall likely outside of the final feet of the
extended cut reasonably likely. The occurrence of a roof fall at the intersection with the No. 2
9

If the Secretary’s argument was to be accepted, any time a cut of two to three-and-a-half
additional feet is taken, mining in that area would need to cease lest miners be exposed to a
reasonably serious likelihood of harm.
10

Foreman Hamilton testified that when a cut is taken close to an intersection, the last
three feet of coal can fall in because of its soft composition. Tr. 281-83. Accordingly, the roof
fall that occurred at the end of the cut may have been a result of the low structural integrity of the
thin reaming seam of soft coal between the extended cut and the No. 2 entry – not a result of the
cut’s length.

41 FMSHRC Page 319

entry does not constitute evidence that additional roof falls are likely to occur in other areas
along the crosscut, bolted or unbolted. The Secretary does cite to testimony espousing that roof
falls can break into roof-bolted areas, arguing that “a mine’s history of roof falls is relevant to
whether an injury from a roof fall is reasonably likely.” Sec’y’s Remand Br. at 7, n. 48, 49.
However, the cited testimony is not cabined to the facts of this case and therefore is not probative
of whether this deep cut, or any deep cut, is likely to result in a roof fall which breaks back into a
roof-bolted area.11
VI.

CONCLUSION

The Secretary’s allegations that a roof fall breaking back into a roof-bolted area “could
happen” in general does not satisfy the Secretary’s burden of demonstrating it is reasonably
likely to occur and injure a miner under the specific facts of this case. Having found that a roof
fall did not occur in the roof-bolted area, the Secretary’s allegation of a possible roof fall in a
roof-bolted area is all that remains. Logically, all violations of mandatory safety standards could
result in injury to miners, hence the reason for their implementation and enforcement. However,
to accept the Secretary’s argument that a violation is properly designated as S&S because it
could result in injury to a miner would effectively allow all non-technical violations to be
designated as S&S. This would be inconsistent with the graduated enforcement scheme of the
Mine Act and is the very reason that the Secretary must prove, in relevant part, that harm is
reasonably likely to result from a violation before it can be designated as S&S.12 Nat'l Gypsum
Co., 3 FMSHRC 822, 825. Here, the Secretary has failed to meet his burden in showing that
Respondent’s taking an extended cut of an additional two to three-and-a-half feet was reasonably
likely to result in harm to a miner. Accordingly, and for the reasons set forth above, I find that
Citation Number 8189820 was not properly designated as S&S and therefore remove the S&S
designation.

11

The cited testimony of Hamilton and Bough does not speak to a “history of roof falls”
that are relevant to the facts before me as the Buchanan Mine #1 has no history of taking
extended cuts. Tr. 244-245. Accordingly, the testimony the Secretary relies on to establish a
history of roof falls cannot possibly relate to roof falls caused by extended cuts, much less
evidence that a roof fall potentially caused by an extended cut will travel back twenty feet into a
roof-bolted area. Tr. 244–45.
12

In Nat'l Gypsum Co., the Commission rejected the Secretary’s argument that a
violation is properly designated as S&S, regardless of the gravity of the resultant harm, as long
as a violation posed “more than a remote or speculative chance that injury . . . will result[.]” Nat'l
Gypsum Co., 3 FMSHRC 822, 825. Specifically, the Commission opined that such an
interpretation of the S&S provision of the Mine Act would be inconsistent with the Act’s
“overall enforcement scheme, which generally provides for the use of increasingly severe
sanctions for increasingly serious violations or operator behavior. Id. at 828. Here, the
Secretary’s theory that a roof fall could break back into a roof-bolted area and injure a miner is
purely speculative.

41 FMSHRC Page 320

ORDER
It is hereby ORDERED that the S&S designation associated with Citation Number
8189820 be removed. I incorporate my initial findings with respect to the appropriate civil
penalty and FURTHER ORDER Respondent pay $1,500.00 within thirty (30) days of the date
of this Decision and Order. 13

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

Distribution:
Eric Johnson, Esq., U.S. Department of Labor, Office of the Solicitor, 211 Seventh Avenue
North, Suite 420, Nashville, TN
Emily Toler Scott, U.S. Department of Labor, Office of the Solicitor, 201 12th Street South,
Suite 401, Arlington, VA 22202
Billy R. Shelton, Esq., Jones, Walters, Turner & Shelton PLLC, 151 N. Eagle Creek Drive, Suite
301, Lexington, KY 40509

13

See Consolidation Coal, 37 FMSHRC 2396, 2410-11. Payment should be sent to: U.S.
Department of Labor, MSHA, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.
Please include docket and A.C. numbers.

41 FMSHRC Page 321

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

June 24, 2019
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 2019-0149
A.C. No. 33-00968-481020

v.
HOPEDALE MINING LLC,
Respondent.

Mine: Hopedale Mine
DECISION AND ORDER

Before:

Judge Miller

This case is before me upon a petition for assessment of civil penalty filed by the
Secretary of Labor pursuant to Section 105(d) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 815(d) (“the Act”). This docket involves four citations issued pursuant to
Section 104(a) of the Act detailing alleged violations of mandatory health and safety standards
with respect to Respondent’s coal mine ventilation plan. The parties appeared at a hearing on
April 24, 2019 in Pittsburgh, Pennsylvania. The parties called no witnesses but submitted
stipulations regarding the citations at issue. Based upon the parties’ stipulations, my review of
the entire record, and consideration of the parties’ legal arguments, I make the following findings
and order.
I.BACKGROUND
The Hopedale Mine is an underground coal mine located in Harrison County, Ohio. The
parties have stipulated that Hopedale Mining LLC is an “operator” as defined in Section 3(d) of
the Mine Act, 30 U.S.C. § 803(d), and that the mine is subject to the provisions of the Mine Act
and the jurisdiction of the Commission. Jt. Stips., Ex. J-2. ¶¶ 1-3.
The Secretary filed a petition for assessment of civil penalty regarding the four citations
in this docket and Respondent filed a timely answer. The originally assessed amount for the
citations at issue totals $18,093.00. The Secretary submitted two motions for settlement on
behalf of the parties. In those motions, the parties represented that they had agreed to a
significant reduction in penalty of almost 81.5% based upon information purporting to support
reductions to the gravity and negligence for each citation.

41 FMSHRC Page 322

The Secretary filed his initial settlement motion on March 25, 2019. The docket contains
four ventilation violations in which the CLR proposed to modify the negligence on all four, and
to change the highly likely to reasonably likely for two citations, thereby reducing the total
penalty from $18,093.00 to $3,339.00 based upon the Secretary’s schedule of penalties found at
30 C.F.R. § 100.3. After the parties were notified that same day via email that the court would
not approve the proposed settlement, the Secretary filed an amended settlement motion on April
5, 2019. The amended motion included the same terms proposed in the initial motion along with
some additional information concerning each citation. In their amended motion, the parties assert
that they included a description of the “issue[s] on which the parties have agreed to disagree” and
that the motion demonstrated “the proposed penalty reduction is fair, reasonable, appropriate
under the facts, and protects the public interest,” as required by Am. Coal Co., 40 FMSHRC 983,
991 (Aug. 2018) [hereinafter “Am. Coal II”]. The Secretary did make an effort to provide some
relevant information in the second motion, which was filed by the Solicitor’s office, but the
second motion was also deficient. That additional information is discussed in more detail below.
On March 29, 2019, the court issued a Notice of Hearing directing the parties to appear
for hearing on April 24, 2019 in Steubenville, Ohio. Due to a lack of courtroom availability, the
court issued a Notice of Hearing Site on April 9, 2019 and changed the location of the April 24,
2019 hearing to a courtroom at the Commission’s Pittsburgh office. Each party filed its
prehearing submission on April 15, 2019; both submissions indicated that no witnesses would be
called at hearing and that the only exhibit offered would be a copy of the parties’ joint
stipulations. Following a conference call with the parties on April 16, 2019, the Secretary
submitted a copy of the parties’ initial joint stipulations to the court.
On April 17, 2019, the court issued an order denying the parties’ amended motion for
settlement. The order also addressed the stipulations, which in fact, contained the identical
information found in the amended motion to approve settlement. The joint stipulations were
considered to be an attempt to have a settlement motion approved and are addressed here as
another effort to further the original settlement. A little over 36 hours prior to hearing, the
Secretary filed a 94-page submission to request that the court reconsider the parties’ settlement
agreement, or alternatively, revoke the subpoena issued to the inspector, or alternatively, certify
the order denying settlement for interlocutory appeal. The hearing was held as originally
scheduled, and the parties introduced an updated copy of the joint stipulations as Exhibit J-2. On
May 1, 2019, Respondent joined the Secretary’s arguments requesting reconsideration of the
settlement agreements and certification of certain issues for interlocutory review.
II.SETTLEMENT ISSUES
Prior to hearing, the parties’ settlement proposals were rejected because they were not
fair, reasonable, appropriate under the facts, or in furtherance of the public interest. The four
citations at issue here involve violations of 30 C.F.R. § 75.370(a)(1), which requires operators to
develop and follow a ventilation plan that is designed to control methane and respirable dust.
Each citation was marked significant and substantial (“S&S”), and the parties’ four settlement
proposals retained those designations. However, in both of the motions and in the two
stipulations, the parties suggested reducing the negligence of three of the four citations from
moderate to low, reducing the negligence of one of the four citations from high to moderate, and

41 FMSHRC Page 323

reducing the likelihood of injury of two of the four citations from highly likely to reasonably
likely. This decision incorporates the order denying the Secretary’s amended motion for
settlement, which was issued on April 17, 2019 and addressed the motion for settlement and
amended motion, as well as the parties’ first joint stipulations. In addition to those three
submissions, I address the second joint stipulation here.
The first motion for settlement was denied on March 25, 2019 in an email sent to the
CLR and the mine operator. The email explained that the four ventilation citations were serious,
as was the potential for exposure to dust, and that such a drastic reduction in the overall penalty
was not supported. The first motion addressed each of the four violations in a limited manner. A
proposal for Citation 8055975, which was issued for failure to maintain adequate air flow,
included a modification to negligence from moderate to low and sought a reduction in penalty
from $1,031.00 to $462.00. The parties justified the modification to low negligence by arguing
that the “foreman stated” to the inspector that he had taken an air reading prior to the roof bolters
entering the area and that reading was within the required parameters. The citation includes a
statement that the mine was cited 10 times in the past two years for ventilation violations. In the
amended motion that followed, the attorney for the Secretary added information explaining that
the inspector’s air reading was 93% of what was required by the plan and that the difference in
the ventilation was not easily detectable by the roof bolter. The Secretary also added that the
supervisor took the air reading “just prior to the inspector’s arrival.” No other changes were
suggested and the proposed reductions to negligence and the penalty remained the same. In the
next settlement attempt, the joint stipulations, one other item was added: the parties agreed that
the foreman said he measured over 3,000 cfm of air prior to roof bolting. Finally in the fourth
attempt, the second joint stipulations, the parties agreed that as the continuous miner advances, it
is farther from the ventilation source. I credit the Secretary for making an effort to supply
additional information, but a significant amount of the information contained conclusions rather
than facts, and it was not sufficient to support the drastic reductions that were proposed. It is
clear that the parties did not consult the Commission’s case law on what constitutes the various
levels of negligence. The Secretary may have more facts he relied upon, but if he does not, the
parties should consider renegotiating the agreement.
Citation 8055976 was issued 35 minutes later on the same MMU-005 for a failure to
remove a tail curtain. The CLR suggested a change from high negligence to moderate and a
reduction to likelihood of injury or illness from highly likely to reasonably likely, reducing the
penalty from $12,321.00 to $1,666.00 based on Part 100. The proposed reduction was based
upon information the mine operator presented that included sampling results for the shuttle car
operators taken at or near the time of the violation and demonstrating no overexposure to dust. In
addition, the justification for modification included a statement that management was not aware
of the violation and that the exposure was for a short duration. The amended motion added that
the “Secretary agrees that the section foreman was at the continuous miner” but was not aware
the curtain had not been adjusted. The next submission, the first joint stipulations, stated that the
section foreman was present at the continuous miner for the cut from E to F, but unaware of the
violation. The parties agreed that the violation was for a short period of time. Finally, in the
second stipulation, the parties added that the exposure lasted for 45 minutes, but still agreed that
it was for a short period of time. They also agreed that there was no evidence of overexposure.
For each violation in the second joint stipulation, the parties added that the violation as set forth

41 FMSHRC Page 324

was a true and accurate description of the condition observed by the inspector with the
exceptions set out. Given all of the information provided, the Secretary has failed to justify the
changes to moderate negligence and a reasonable likelihood of injury, as well as the drastic
penalty reduction.
Citation 8055977, issued on MMU-005 just 45 minutes after Citation No. 8055976, cites
the mine for having plugged water sprays on the continuous miner. The first motion suggested a
reduction from moderate negligence to low and a reduction in likelihood of injury or illness from
highly likely to reasonably likely. The proposed penalty was reduced from $3,710.00 to $749.00.
The CLR justified the changes by stating that the personal samples taken by the shuttle car
operators showed the dust levels in compliance and management was not aware that the sprays
were plugged. The second motion added more to the parties’ justifications and included a
statement that the location of the plugged sprays made it difficult for the operator of the
continuous miner to see the non-functioning sprays. The motion also included a statement that
the respirable dust parameters were in compliance at the start of the shift and the sprays had been
checked after the third cut. The motion added finally that there was no dust “rolling over” the
continuous miner at the time. In the third attempt at settlement, contained in the first set of joint
stipulations, the parties stated that “rolling dust” is a reliable sign of plugged sprays and there
was no rolling dust. The parties also asserted that the sprays were checked after the cut from E to
F. Finally, the last stipulation added that the inspector did not know about the samples from the
shuttle car operators when he issued the citations and there was no reliable evidence as to the
duration of the exposure. Given all of the information provided, the Secretary has not made a
case for low negligence as it is defined by the Commission.
Inspector Dye issued the fourth citation, No. 8055978, about one and a half hours later on
MMU-005 for failing to maintain the roof bolter vacuum as required by the ventilation plan. The
CLR justified the change from moderate to low negligence by indicating that the bolter was in
compliance at the beginning of the shift. The amended motion added that the 2 inch difference
from 12 Hg. to 10 Hg. was not easily detectable by the roof bolter. The first stipulation added
little to the parties’ justification and the second stipulation stated further that there was no
evidence an agent was aware of the violation. The second stipulation also included a statement
that the parties agreed that two factors were material in assessing negligence: the fact that the
agent was not aware of the condition and that the difference between 10 Hg. and 12 Hg. was not
easily detected. Given the information provided for this particular violation, I would not agree
that the Secretary has met the definition of low negligence. The fact that the agent was not aware
does not support a reduction to low negligence. A reading that was taken at the beginning of the
shift may justify such a modification if more information was provided to explain the reading.
There are clearly more facts the Secretary could have added to make the settlement of this
citation and the corresponding reduction in penalty from $1,031.00 to $462.00 acceptable.
The order denying the amended motion for settlement set forth the court’s reasons for
finding that the proposed penalty reduction was not fair, reasonable, appropriate under the facts,
or protective of the public interest. First, the information available did not support the proposed
reductions to gravity and negligence. For each citation at issue, the parties presented insufficient
information or information that had little to no bearing on the designation for which they sought
modification. Second, the exercise of setting forth facts on which the parties have agreed to

41 FMSHRC Page 325

disagree may partially fulfill the Commission’s directive from Am. Coal II, but it is not the sole
criteria for the approval of settlement. Third, the parties’ initial joint stipulations, filed just prior
to the issuance of the order denying settlement, added little to the proposed settlement. The
document was nearly identical in content to the previously filed settlement motions, but with a
different heading. It was therefore considered in denying the motion for settlement. Ultimately, it
was determined that the information the parties set forth in support of settlement combined with
the information available in the case file1 did not support the proposed modifications.
Following the court’s order denying settlement, the Secretary filed a 94-page submission
just 36 hours prior to the scheduled hearing. The Secretary’s motion sought reconsideration of
the settlement denial, or revocation of the subpoena to the inspector, or certification of certain
issues for interlocutory appeal. In the interests of judicial economy, I convened the previously
scheduled hearing and allowed counsel for both parties to address the outstanding motions. For
the reasons set forth below, I deny the Secretary’s motion and each of his requests in the
alternative.
In the motion filed just prior to hearing, the Secretary first argues that the court abused its
discretion by denying the parties’ initial proposed settlement, which was filed on March 25,
2019. To support his argument, the Secretary asserts that the court failed to cite to the proper
settlement standard and failed to provide guidance on what constitutes an appropriate settlement.
As the Commission has observed repeatedly, a judge’s “front line oversight of the settlement
process is an adjudicative function that necessarily involves wide discretion.” Sec’y of Labor on
behalf of Shemwell v. Armstrong Coal Co., 36 FMSHRC 1097, 1101 (May 2014) (citations
omitted). In the court’s initial email to the parties, they were advised that the settlement was not
adequate, and that the four ventilation violations, as well as over exposure to dust, were serious
issues. The email gave the parties an informal opportunity to go back and look at the settlement
to decide if they wanted to present additional information or renegotiate the terms. The email
was sent with the standards for reviewing penalty reductions in settlement in mind and was
meant to give notice to the parties that they should revisit their settlement. As a result of that
email, the parties submitted an amended motion that was then addressed, along with the first
joint stipulations in a formal order denying the settlement.
The Secretary argues next in his Motion for Reconsideration that with respect to the
denial of the parties’ amended settlement motion, the court made four errors amounting to an
abuse of discretion. First, the Secretary contends that the court relied on Section 110(i) as the
legal standard for reviewing the proposed settlement. This assertion has no merit. See Order
Denying Settlement at 2 (applying the standard the Commission has articulated for evaluating
penalty reductions in settlements, which directs judges to determine whether a proposed penalty
reduction is fair, reasonable, appropriate under the facts, and protects the public interest; and
1

The Secretary, joined later by Respondent, expressed some concern as to the contents of
the court’s “file” in this case. Sec’y Mot. for Recons. at 3; Resp. Joinder. As clarified at hearing,
the file referenced in the order denying settlement consists of the Secretary’s petition,
Respondent’s answer, and any other documents that have been filed by or with the court since
the penalty case commenced as well as information learned on a conference call and through
emails. Tr. at 19-20.

41 FMSHRC Page 326

referencing the requirement of the Mine Act to consider Sections 110(i) and (k) when evaluating
proposed settlements). The Secretary then suggests that the Court’s reliance on the standard set
forth in Am. Coal Co., 38 FMSHRC 1972, 1976 (Aug. 2016) [hereinafter “Am. Coal I”], is
troubling. The Secretary bases this assertion on his belief that the Am. Coal. II decision “fully
articulates the Commission’s legal standard for evaluating proposed penalty reductions.” Sec’y
Mot. for Recons. at 4. I disagree. The Commission’s 2018 decision does not add additional
elements to the standard articulated in 2016—the standard remains the same. Compare Am. Coal
II, 40 FMSHRC at 984, 988, 991, 993, with Am. Coal I, 38 FMSHRC at 1976. Nor does the 2018
decision supersede the standard set forth in the 2016 decision. Rather, Am. Coal II clarifies that
mutually acceptable facts are sufficient to meet the standard for evaluating proposed penalty
reductions in settlement.
The Secretary then argues that the court was wrong to disregard the purported
“enforcement value” of the parties’ proposed settlement. In support of this claim, the Secretary
states that “the Commission validated the Secretary’s interest in the enforcement value of any
given settlement” in Am. Coal II, 40 FMSHRC at 989. Sec’y Mot. for Recons. at 4 (emphasis
added).2 The Secretary’s position mischaracterizes the Commission’s statement. Far from
validating the Secretary’s interest in the enforcement value of any given settlement, the
Commission has observed that “[t]he Secretary makes a valid point that the fact that the
proposed settlement preserves all of the citations as written could assist the Secretary in future
enforcement efforts against this operator by ensuring that the paper record reflects the
Secretary’s views regarding gravity and negligence stated in the citations.” Am. Coal II, 40
FMSHRC at 989 (emphasis added). In the settlement at issue here, the operator agreed to accept
the citations in a modified form, and not as originally issued. The Secretary’s motion fails to
address the reason why accepting modified citations would be valuable in future enforcement
actions.3 As Congress has noted, the overall purpose of the penalty system is to encourage
operator compliance with the Mine Act’s requirements. See S. Rep. No. 95-181, at 41 (1977),
reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of the
Federal Mine Safety and Health Act of 1977, at 629 (1978). While “enforcement value” could be
a factor outside of the section 110(i) factors that might be relevant when evaluating a proposed
settlement, the Secretary’s statements on enforcement value in this case, both in the motion for
reconsideration and in his previous settlement motions, have not demonstrated the
appropriateness of the settlement at issue here.
The Secretary’s final two arguments allege that the court abused its discretion by
inappropriately assigning probative value to the operator’s general history of ventilation
violations, and by using hyperbole to misrepresent the terms of settlement. As the Commission
has acknowledged, when reviewing information set forth in support of a reduced penalty in
settlement, a judge should consider whether such information supports a finding that the
2

The Secretary made a similar argument in another case before this court, Northshore
Mining Co., Docket No. LAKE 2018-0177.
3

As Commissioner Cohen noted in Am. Coal II, “[t]he Secretary’s boilerplate recitations
of having evaluated the value of compromise, the prospects of coming out better or worse after a
trial, and ‘maximizing his prosecutorial impact’ add nothing.” 40 FMSHRC at 989 n.10.

41 FMSHRC Page 327

proposed penalty reduction is fair, reasonable, appropriate under the facts, and protects the public
interest. Am. Coal I, 38 FMSHRC at 1982. The exercise of highlighting certain facts that tend to
support a judge’s decision regarding the appropriateness of settlement does not necessarily mean
that the judge has given probative value to those facts over others. Rather, it is a window into
how the court is evaluating the information before it, and it alerts the Secretary and the mine
operator as to which portions of the settlement may need further review or explanation by the
parties. This, in turn, helps to achieve Congress’ stated intent in the penalty settlement process to
provide transparency to all interested parties. See Am. Coal II, 40 FMSHRC at 987-88.
The Commission’s procedural rules require the parties to “provide factual support in the
settlement proposal and for the Judge’s decision approving settlement to be supported by the
record.” Am. Coal I, 38 FMSHRC at 1981; see also 29 C.F.R. §§ 2700.31(b), (c), and (g). In
addition to looking to the modification to each citation, the settlement was reviewed and
considered in its entirety. A full evaluation of the facts set forth in each citation reveals that all of
the citations were issued within a relatively short period of time and in the same area of the mine.
Each citation was issued for a violation of the ventilation plan and the mine foreman was in the
area when the citations were issued. While the Secretary asserts that the negligence of three of
the violations should be reduced from moderate to low largely because the foreman or an “agent
of the operator” was not aware of the violations, the facts paint a different view. As explained
below, the mine foreman is held to a higher standard and the negligence inquiry centers around
whether he “knew or should have known.” For all of these reasons, I deny the Secretary’s request
to reconsider my denials of settlement.
In the alternative to reconsidering the parties’ proposed settlement, the Secretary argues
next for revocation of the subpoena duces tecum the court issued to John William Dye, the
MSHA inspector who issued the citations in this case. The Secretary claims that the subpoena is
unreasonable and unnecessary, therefore constituting an abuse of discretion.4 While Inspector
4

In support of this argument, the Secretary once again references Northshore Mining Co.,
LAKE 2018-0177, and the court’s “unreasonable” statements at a hearing held on October 16,
2018 regarding several other Northshore cases. The Secretary includes only a part of that history.
In his motion for reconsideration, the Secretary argues that just as in Northshore, the court here
has engaged in a “judicial fishing expedition” by seeking more information, this time from the
inspector, to support the parties’ settlement proposal. Sec’y Mot. for Recons. at 9. The Secretary
attempts to bolster this claim by alleging that the court previously made “inappropriate inquiries
into the details of the parties’ settlement discussions” in Northshore. Id. at 9 n.9.
From the time the parties submitted their initial motion to approve settlement in
Northshore, LAKE 2018-0177, the court repeatedly requested additional information that would
support the proposed modifications because the information made available was insufficient. As
the Commission noted in Am. Coal Co. II, Commission judges who properly determine that “a
settlement motion lacks sufficient information may permissibly request further facts from the
parties.” 40 FMSHRC at 988 (citing Black Beauty Coal Co., 34 FMSHRC 1856, 1863 (Aug.
2012)). The initial motion, filed on July 24, 2018, did not contain facts sufficient to justify the
Secretary’s total proposed penalty reduction of 80%. Following an email to the parties requesting
(continued…)

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Dye appeared at the April 24 hearing as directed, I did not ask him substantive questions, nor did
I require him to turn over any documents. Although the Secretary’s motions and stipulations
make reference to the inspector’s notes, they were not provided to the court here and thus not
considered unless specifically set forth in a pleading. The Secretary’s argument regarding what a
Commission Judge may ask to review in furtherance of a settlement has not been addressed by
the Commission, and I do not address it here.
Finally, in another alternative to his prior arguments, the Secretary requests the court
certify for interlocutory review its two denials of settlement and issuance of the subpoena. Since
the case has been heard, the matter is moot, but addressed briefly. The Secretary states that those
decisions involve controlling questions of law and immediate review may materially advance the
final disposition of these proceedings. Specifically, the Secretary argues that three controlling
questions of law have been raised in this case:
1) Whether the judge’s March 25, 2019 denial of settlement constitutes an abuse of
discretion;
2) Whether the judge’s April 17, 2019 denial of settlement constitutes an abuse of
discretion; and
3) Whether the judge’s April 17, 2019 subpoena to the MSHA inspector constitutes an
abuse of discretion, or is otherwise unreasonable.
Sec’y Mot. for Recons., at 11.

4

(…continued)
additional facts, the Secretary submitted an amended motion, which also lacked sufficient
information to demonstrate the appropriateness of the large penalty reductions. As a result, a
conference call was held on August 13, and, in an email immediately following that call, the
parties were directed yet again to provide more facts that would support the proposed penalty
reductions. The Secretary then submitted a second amended settlement motion on August 23,
2018, which included no additional facts from the Secretary but did contain more information
provided by the operator’s counsel about the circumstances surrounding three of the violations.
Both the Secretary and operator’s counsel were given the opportunity to discuss
outstanding settlement issues related to Docket Nos. LAKE 2018-0177 and LAKE 2018-0147 at
a hearing held on October 16, 2018. The Secretary attached the relevant excerpt of that hearing
as Exhibit C to his motion for reconsideration here. The Secretary states in the motion filed in
this case that the court’s statement at the Northshore hearing that it had not yet heard from the
Secretary following the operator’s submission of additional information in LAKE 2018-0177
constituted an inappropriate inquiry into the details of settlement. Sec’y Mot. for Recons. at 9
n.9. With respect to the settlement reached in LAKE 2018-0147, it was the mine operator’s
counsel again who volunteered additional information, this time verbally at hearing, to help the
court “fulfill the duty of articulating reasons for the [settlement] approval so that the process of
compromising penalty amounts is transparent, as Congress intended.” Am. Coal II, 40 FMSHRC
at 988-89. In light of the additional information offered by the mine operator in both Northshore
cases, I ultimately approved those settlement agreements.

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Commission Rule 76 provides that a judge should certify a ruling for interlocutory review
if it involves a controlling question of law and immediate review will materially advance the
final disposition of the proceeding. 29 C.F.R. § 2700.76(a)(1). I find that interlocutory review of
the court’s March 25, 2019 and April 17, 2019 denials of settlement is not merited under the
facts of this case. Neither of these questions involves controlling questions of law; these two
questions are not novel nor do they involve an unresolved question of law relevant to the case.
The Commission has repeatedly addressed settlement requirements as they relate to contested
civil penalties. See, e.g., Am. Coal II, 40 FMSHRC 983; Am. Coal I, 38 FMSHRC 1972; Black
Beauty, 34 FMSHRC 1856. The Secretary may take issue with the Commission’s decisions, but
the case law is clear: when evaluating penalty reductions in settlement, a judge must determine
whether the proposed penalty reduction is fair, reasonable, appropriate under the facts, and
protects the public interest. Am. Coal I, 38 FMSHRC at 1976. Here, I considered the facts based
on the standard the Commission has articulated for evaluating penalty reductions in settlement
and determined the parties’ proposed settlement was not fair, reasonable, appropriate under the
facts, or protective of the public interest.
I find further that interlocutory review of the court’s April 17, 2019 subpoena to the
inspector is not merited based on the facts of this case. Although the Secretary’s argument may
have merit, the issue in this case involves a judge’s authority to compel the inspector to appear at
hearing, while the issue currently on review before the Commission deals with such authority
during the settlement process and before a hearing on the merits. As the Secretary has
recognized, the Commission and its judges have the authority to “compel the attendance and
testimony of witnesses and the production of books, papers, or documents, or objects . . . at any
stage of the proceedings before them.” 30 U.S.C. § 823(e). However, given the Secretary’s
objection, the inspector was not questioned and no documents were produced. Accordingly, for
the reasons set forth above, the Secretary’s motion is denied in its entirety.
III.MATTERS FOR HEARING
At the hearing on April 24, the Secretary and the mine operator refused to present
witnesses or exhibits in support of their case. Instead, the parties presented the court with
amended joint stipulations. The stipulations contained provisions almost identical to the terms
that comprised the previously rejected settlement motions, but with a few additional facts related
to jurisdiction. The amended stipulations also included information related to the mine’s history
of violations, since that history had been raised in the order denying settlement, as well as a
statement that the parties agreed that the information contained in each of the citations was
accurate, with some exceptions. Finally, the amended stipulations contained statements that the
parties agreed to the level of negligence, the modifications, and the modified penalty amount.
Following a discussion regarding the appropriateness of reducing the parties’ settlement
agreement to stipulations, the Secretary’s representative read the additional information into the
record and the amended joint stipulations were admitted as Exhibit J-2. Tr. at 29-32. However,
the stipulations were not accepted in lieu of evidence. The stipulations are more accurately
characterized as a modified settlement motion at best, and the parties offered no evidence outside
of those stipulations. Without an acceptable settlement agreement, the parties to a case are

41 FMSHRC Page 330

expected to renegotiate a settlement that is acceptable to the Commission, or present evidence at
hearing.5 The parties did neither.
While ostensibly offered for the purpose of streamlining the hearing, the stipulations at
issue here were inappropriate because they served as an indirect means of effectuating the same
settlement that the court denied twice prior to hearing. In Exhibit J-2, the parties simply took
their reasons and conclusions supporting settlement from the previously denied motions and
reduced those reasons and conclusions to “stipulations of fact.” Thus, for the most part, they
were not stipulations of fact but legal conclusions. Stipulations of fact should not contain restated
conclusions or arguments; stipulations of fact should contain facts only. For example, stipulation
7(i) states that “the parties agree the appropriate negligence level is ‘[l]ow.’” The parties make
similar statements with respect to each remaining citation at issue. However, the degree of
negligence is not a fact; rather, the degree of negligence is a legal conclusion to be determined by
the court based on the facts available for review. I find it troubling and frustrating that instead of
seeking to renegotiate a settlement, the parties have instead attempted to back door a settlement
by reducing previously rejected arguments and conclusions to “stipulations of fact.”
Stipulations of fact may be appropriate in two instances: when there are no facts in
dispute and the parties are seeking summary judgment, and when the parties want to aid in the
process of hearing. Tr. at 27. When viewed in the context of summary decision, stipulations may
be appropriate with proper supporting evidence, such as affidavits. Stipulations may also be
appropriate at hearing as a means to narrow certain issues, as the Secretary argues. However,
stipulations are no substitute for and do not take the place of witnesses and exhibits at hearing.
The information set forth in Exhibit J-2 was considered in the analysis above as part of an
amended motion to approve settlement. Otherwise, the joint stipulations are simply a subterfuge
to have a settlement approved that was unacceptable in its original form. Nonetheless, I address
each citation below based upon the factual information provided in Exhibit J-2. In doing so, I
accept the agreed upon facts contained in the stipulations but, as I would in any decision, come
to conclusions that are supported by those facts contained in the record. The conclusions I have
reached based upon the stipulated facts are not the same as those reached by the parties.
A. Citation No. 8055975
Citation No. 8055975 was issued by Inspector Dye on December 4, 2018 pursuant to
Section 104(a) of the Act for a violation of 30 C.F.R. § 75.370(a)(1). The citation alleges that the
operator did not follow its currently approved ventilation plan by failing to ensure that 3,000 cfm
of air was provided behind the line curtain in the active section where the roof bolter was
operating. The inspector determined that the cited condition was reasonably likely to cause a

5

The Secretary routinely refuses to renegotiate settlements that have been denied, thereby
rendering meaningless the requirement that a settlement be approved by the Judge.

41 FMSHRC Page 331

permanently disabling injury to two people, was S&S,6 and that it resulted from moderate
negligence. The Secretary proposed a penalty of $1,031.00.
As part of the parties’ proposed settlement, the Secretary has agreed to reduce negligence
from moderate to low, thereby reducing the penalty to $462.00 based on the Part 100 point
system. In their settlement motions and Exhibit J-2, the parties state that they agree to a reduction
to low negligence because of mitigating circumstances. The parties explain that the section
supervisor took an air reading behind the line curtain “just prior to the inspection,” and that
reading showed 3,200 cfm of air. However, when the inspector took an air reading, the
anemometer showed 2,792 cfm, which is 93% of what is required by the plan. In addition, the
parties agree that the inspector’s notes confirm that the foreman stated he had taken an air
reading that reflected over 3,000 cfm just prior to the roof bolters installing roof bolts. Based on
the information presented, I cannot tell if the supervisor took one reading prior to the roof bolters
entrance to the area or if the reading was taken again just prior to the inspector’s arrival. I do
accept the fact that the supervisor was present at the time of the violation and he did take an air
reading at some point during the shift. In Exhibit J-2, the parties add that “[a]s the continuous
miner advances through the section, it moves further away from the source of ventilation,
potentially resulting in an air volume reading lower than what is required by the ventilation plan,
but at a variation in volume not readily discernable to a miner. This fact was not considered by
the inspector.” It may be a fact that air does not reach equipment as it moves farther from the
source, but there is no evidence that was the case in this instance. Furthermore, there is no
evidence to show that the miner could not discern that the volume of air was less than originally
measured. Instead, the parties use the term “potentially” to describe this alleged fact. The facts
agreed to by the parties do not establish that negligence should more correctly have been marked
as low.
In evaluating negligence, the Commission has explained that each mandatory standard
carries with it an accompanying duty of care to avoid violations of that standard and “an
operator’s failure to meet the appropriate duty can lead to a finding of negligence if a violation of
6

A “significant and substantial” (“S&S”) violation is described in Section 104(d)(1) of
the Mine Act as a violation “of such nature as could significantly and substantially contribute to
the cause and effect of a coal or other mine safety or health hazard.” 30 U.S.C. § 814(d)(l). A
violation is properly designated S&S “if, based upon the particular facts surrounding that
violation, there exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC
822, 825 (Apr. 1981).
The Commission has explained that the overexposure to respirable dust resulting from a
violation of the respirable dust standards, i.e., 30 C.F.R. §§ 70.100 and 70.101, is presumed to be
S&S. U.S. Steel Mining Co., 8 FMSHRC 1274, 1281 (Sept. 1986); Consol. Coal Co., 8
FMSHRC 890, 899 (June 1986). This conclusion was based on “the nature of the health hazards
at issue, the potentially devastating consequences to affected miners, and the strong concern
expressed by Congress for the elimination of occupation-related respiratory illnesses to miners.”
U.S. Steel Co., 8 FMSHRC at 1281. While there is no such presumption in this case because a
respirable dust standard is not involved, the same principles apply.

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the standard occurs.” A.H. Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983). In determining
whether an operator met its duty of care, the judge must consider “what actions would have been
taken under the same circumstances by a reasonably prudent person familiar with the mining
industry, the relevant facts, and the protective purpose of the regulation.” Newtown Energy, Inc.,
38 FMSHRC 2033, 2047 (Aug. 2016); Brody Mining, LLC, 37 FMSHRC 1687, 1702 (Aug.
2015); U.S. Steel Corp., 6 FMSHRC 1908, 1910 (Aug. 1984).
The Secretary defines negligence as “conduct either by commission or omission, which
falls below a standard of care established under the Mine Act to protect miners against the risks
of harm.” 30 C.F.R. § 100.3(d). According to the Secretary’s regulations, moderate negligence
occurs when the operator knew or should have known of the violative condition, but there are
mitigating circumstances that exist. Id. Low negligence occurs when the operator knew or should
have known of the violative condition, but there are considerable mitigating circumstances. Id.
Under the Secretary’s own guidelines, the modification to low negligence is not warranted.
While the Secretary’s Part 100 regulations evaluate negligence based on the presence of
mitigating factors, Commission judges are not limited to that analysis. Brody Mining, 37
FMSHRC at 1702-03; see also Hidden Splendor Res., Inc., 36 FMSHRC 3099, 3101-02 (Dec.
2014). Rather, Commission judges consider “the totality of the circumstances holistically” and
may find high negligence in spite of mitigating circumstances or moderate negligence without
identifying mitigating circumstances. Brody Mining, 37 FMSHRC at 1702-03. The Commission
has recognized that “the gravamen of high negligence is that it ‘suggests an aggravated lack of
care that is more than ordinary negligence.’” Id. at 1703 (quoting Topper Coal Co., 20 FMSHRC
344, 350 (Apr. 1998)).
Here, the information the parties presented, both in their settlement proposals and
stipulations, does not support a legal finding of low negligence. It is not clear when the air
reading was taken by the supervisor or if further air readings were taken as the roof bolters or
continuous miner started to advance. A section supervisor, whose actions may be attributable to
an operator, should be diligent in checking the air supply throughout the cut. This is particularly
true when he understands that as the continuous miner advances, it is farther from the ventilation
source and less effective. The Commission has explained in Ohio County Coal, 40 FMSHRC
1096, 1099 (Aug. 2018), that an operator’s actual or constructive knowledge is a key component
of a negligence evaluation. As part of the settlement on review in that case, the Secretary had
agreed to reduce negligence on one citation from moderate to low specifically because the
foreman was not present. Id. at 1098. Based on that reasoning, the Secretary would not accept a
modification to low negligence for the citation at issue here, where the foreman was present. The
proposed reduction to low negligence essentially takes the responsibility off of the foreman and
the mine to live up to the standard of care that is required under the Mine Act.
The order denying the amended settlement explained that the history of the mine operator
may be important to an evaluation of negligence in this case. In response, the Secretary included
a statement in Exhibit J-2 that the operator had only violated the ventilation plan once in the past
two years in a manner similar to that cited here. However, the plan is considered as a whole, and
the supervisors, as well as the miners, are trained on the requirements of the plan. Ventilation is
important to help prevent exposure to coal dust and silica every day, and by reducing the

41 FMSHRC Page 333

negligence on all four citations, along with a large reduction in penalty, the Secretary is
removing the deterrent effect contemplated by the Act. If the supervisor or the miners do not
understand how to best effectuate the ventilation plan, then retraining may be necessary.
Additionally, a supervisor must set a good example by continuing to monitor the air as the
equipment moves and dust is generated. If indeed it is a fact that the ventilation effectiveness
changes as the continuous miner moves, then the supervisor and the continuous miner operator
should be aware of that fact and adjust accordingly. For all of these reasons, I do not agree that
the record as a whole suggests that the negligence should be reduced to low for this violation. I
find further that the Secretary has not met his burden of proving the violation, as issued or as he
proposes to modify, through the stipulations presented here.
B. Citation No. 8055976
Inspector Dye issued this citation for another violation of 30 C.F.R. § 75.370(a)(1) only
12 minutes after Citation No. 8055975 was terminated. Citation No. 8055976 alleges that the
operator did not follow the ventilation plan in the crosscut of an active section. Specifically, the
operator failed to remove the tail curtain in the entry intake, which allowed dust generated by the
continuous miner to be carried over the mining crew and exposed the miners to respirable coal
dust and silica. According to the citation, page 3-9 of the ventilation plan requires the tail curtain
to be dropped in the intake entry when cutting into the intake air. The inspector marked the
citation as highly likely to cause a permanently disabling injury to five people, S&S, and
resulting from high negligence. The citation was terminated 10 minutes after it was issued, and
the Secretary subsequently proposed a civil penalty in the amount of $12,321.00.
The parties proposed to reduce negligence from high to moderate and to reduce the
likelihood of injury from highly likely to reasonably likely. These modifications resulted in a
drastic reduction in penalty to $1,666.00 based on Part 100. In support of the proposed reduction
to likelihood of injury, the parties asserted that results of Continuous Personal Dust Monitoring
(“CPDM”) samples taken on shuttle car operators at the time the violation was issued were
below the 1.5 mg standard. They also argued that a reduction in likelihood of injury was
warranted because of the short duration of exposure to the condition. In support of reducing
negligence from high to moderate, the parties stated that while the section foreman was at the
continuous miner during the cut, he was unaware that the curtain had not been adjusted prior to
the cut as required by the plan.
The Commission evaluates negligence from the starting point of a traditional negligence
analysis and examines whether the operator has met “the requisite standard of care—a standard
of care that is high under the Mine Act.” Mach Mining, LLC v. Sec’y of Labor, 809 F.3d 1259,
1264 (D.C. Cir. 2016) (citing Brody Mining, 37 FMSHRC at 1702). The Commission has
explained that the standard of care is that of a reasonably prudent person familiar with the mining
industry. Brody Mining, 37 FMSHRC at 1702. The Mine Act places primary responsibility on
operators to maintain safe and healthful working conditions in mines, and they are thus expected
to set an example for miners working under their direction. Newtown, 38 FMSHRC at 2047;
Wilmot Mining Co., 9 FMSHRC 684, 688 (Apr. 1987); see also 30 U.S.C. § 801(e). “Such
responsibility not only affirms management’s commitment to safety but also, because of the

41 FMSHRC Page 334

authority of the manager, discourages other personnel from exercising less than reasonable care.”
Wilmot, 9 FMSHRC at 688.
A reduction in negligence is simply not supported by the facts surrounding the violation
and the information the parties have submitted in support of settlement. Section managers and
foremen have a great responsibility to maintain safe and healthful working conditions at each
mine. They must be proactive in their duties and take steps to ensure that they are in compliance
with the very plans that are in place to protect the health and safety of miners. The argument that
the foreman was unaware that the line curtain had not been advanced is wholly unpersuasive and
does not comport with the reasonably prudent miner standard of care. As stated above, a foreman
or manager must be familiar with the ventilation plan. The suggestion that the foreman was
unaware of the cited condition indicates that the foreman was extremely careless or not properly
trained. In any event, the foreman failed to live up to the standard of care required under the
Mine Act and a downward adjustment to negligence is not appropriate in this circumstance. Just
as with the other violations at issue here, certain factors such as supervisor familiarity with the
plan, ventilation violations issued in a very short period of time with at least one supervisor in
the working area, and the serious nature of exposure to coal dust support the findings initially
made by the inspector. These factors therefore make it difficult to agree that the proposed
modification to this citation and the accompanying severe reduction in penalty is fair, reasonable,
or in the public interest.
Similarly, the information the parties have presented does not support a modification to
the likelihood of injury. As the citation states, the failure to properly position the tail curtain
caused dust from the continuous miner to be carried over the mining crew and exposed miners to
respirable dust and silica. The fact that CPDM samples from shuttle car operators were below the
standard has little impact on the evaluation of the likelihood of injury or illness for this citation.
As I noted in the order denying settlement, shuttle car operators do not receive the same or
similar respirable dust exposure as the continuous miner operators. Shuttle car operators drive in
and out of the area being cut, whereas the continuous miner operators remain with the equipment
in the area being mined. In addition, a short duration of exposure to respirable dust would not
alone reduce the likelihood of injury or illness. While a single exposure to respirable dust or
silica may not cause serious respiratory disease, there is little dispute that repeated exposure of
short durations ultimately contributes to the development of such disease. See Consol. Coal Co.,
8 FMSHRC at 898-99. Pneumoconiosis, or black lung, is extremely serious and it is not always
known how much exposure ultimately results in the disease. Accordingly, a reduction in
likelihood of injury or illness would not be appropriate here and I cannot approve such
adjustment. Even if I accept all of the facts presented in the parties’ stipulations, I cannot reach
the conclusions set forth by the parties. I find that the Secretary has not met his burden of proof
with regard to this violation, as originally issued or in its proposed modified form.
C. Citation No. 8055977
Citation No. 8055977 was issued 35 minutes after Citation No. 8055976 was terminated,
and alleges a third violation of 30 C.F.R. § 75.370(a)(1). The inspector observed that the operator
was not maintaining the minimum number of operating water sprays on the continuous miner
while it was operating on the active section. When the inspector checked the sprays, only 19 of

41 FMSHRC Page 335

30 were operating. According to page 4-2 of the ventilation plan, a minimum of 27 of 30 sprays
are required to be operating while the continuous miner is in use. The inspector marked the
citation as highly likely to cause a permanently disabling injury to five people, S&S, and
resulting from moderate negligence. The citation was terminated 55 minutes after it was issued.
The Secretary proposed a civil penalty in the amount of $3,710.00 for this alleged violation.
As part of their settlement proposal, the parties agreed to reduce the likelihood of injury
from highly likely to reasonably likely, and to reduce negligence from moderate to low. The
modifications resulted in a reduced penalty of $749.00 per Part 100. The parties again pointed to
the CPDM samples taken from the shuttle car operators and the short duration of exposure to the
condition to support the modification to likelihood of injury. With respect to negligence, the
parties stated that a reduction was justified because the location of the plugged sprays made it
difficult for the operator of the continuous miner to recognize that the sprays were plugged. In
Exhibit J-2, the parties assert that “the rolling of dust is a reliable visual sign that water sprays
may be ineffectively controlling dust, and dust was not observed ‘rolling’ over the miner
operator or shuttle car operators.” According to the parties, this information was not known or
considered by the inspector. The parties also agreed that the inspector’s notes reflected that he
was told that the respirable dust parameters were in compliance at the beginning of the shift and
the sprays were checked after the third cut was completed. Finally, the Secretary submits that he
has “no reliable evidence of the length of time the condition existed or that the concentration of
respirable dust exceeded the standard.”
The parties describe the same arguments regarding likelihood of injury as they did to
support the reduction in gravity to Citation No. 8055976. Those arguments are equally
unavailing with respect to this citation and I incorporate my reasoning set forth above in
rejecting the modification here. Citation No. 8055977 indicates that it took almost an hour for the
water sprays to be repaired and cleaned. The condition of the sprays suggests extensive build-up
and clogging which would have taken a considerable amount of time to develop. In addition, the
information the parties provided that dust was not observed “rolling” over the continuous miner
operator or shuttle car operators is not enough to reduce the likelihood of injury. If dust were
“rolling” over the continuous miner, it would indicate a serious problem that could be attributed
to a number of issues. The absence of the rolling dust is not proof of anything.
The information that the parties submitted purporting to support a modification from
moderate to low negligence is also unpersuasive. As described in the citation, the mine’s
ventilation plan requires that 27 of the continuous miner’s 30 water sprays operate while the
equipment is in use; the inspector found that only 19 of 30 were operational. This undoubtedly
results in increased dust in the air as the continuous miner cuts into the active section. While I
understand that the location of the non-operational water sprays may have made it more difficult
to see exactly which sprays were plugged, it is hard to accept that a reasonably prudent miner
would not recognize that only 63% of the sprays were operating as expected. As stated above,
the assertion in the stipulation that there was no visible dust “rolling” over the miners or that
there is no reliable evidence as to the length of time the condition existed are not facts that
necessarily support a finding of low negligence. There is, in fact, evidence to suggest the plugged
sprays were extensive, and there is information in the file to support the fact that supervisors
were present. Finally, there is no requirement that the Secretary found, through dust samples, that

41 FMSHRC Page 336

the miners were exposed to dust when looking at violations of the ventilation plan and when
assessing negligence of a ventilation plan violation.
As the citation describes, the foreman was in the area of the MMU-005 during the course
of the inspection. The Commission has long recognized that mine management is held to a
heightened standard of care. Newtown, 38 FMSHRC at 2047. When a violation is committed by
a non-supervisory employee, the conduct of the rank-and-file miner is typically not imputable to
the operator for negligence purposes. Ky. Fuel Corp., 40 FMSHRC 28, 31 (Feb. 2018). In such
circumstances, Commission judges must analyze “whether the operator has taken reasonable
steps to prevent the rank-and-file miner’s violative conduct.” Id.; see also Knight Hawk Coal,
LLC, 38 FMSHRC 2361, 2369 (Sept. 2016). Relevant considerations include “the foreseeability
of the miner’s conduct, the risks involved, and the operator’s supervising, training, and
disciplining of its employees to prevent violations of the standard [at] issue.” A.H. Smith Stone
Co., 5 FMSHRC at 15-16. The amount of non-operational water sprays leads me to conclude that
there was general lack of initiative from miners and management to make sure that the
continuous miner’s water sprays were being properly cleaned throughout each shift. Given the
overall circumstances related to the four ventilation violations, including the seriousness of
exposure to coal dust and the reasonable expectation as to the supervisor’s knowledge of a
ventilation plan, the proposed modifications to this citation are not supported by the information
available for review. In addition, there are insufficient facts in the file to support a conclusion
that the Secretary has met his burden to prove the violation as issued.
D. Citation No. 8055978
Finally, Citation No. 8055978 was issued for a fourth violation of 30 C.F.R. §
75.370(a)(1) just 55 minutes after Citation No. 8055977 was terminated. The citation alleges that
the roof bolter operating on the active section was not in compliance with ventilation plan
requirements. When the inspector checked the vacuum on the return side of the roof bolter, only
10 in. Hg of pressure was provided. According to the citation, page 2-1 of the ventilation plan
requires a minimum of 12 in. Hg to be maintained while the roof bolter is operating on the active
section. Inspector Dye determined that the condition was reasonably likely to cause a
permanently disabling injury to two people, was S&S, and resulted from moderate negligence.
The citation was terminated 20 minutes after it was issued. The Secretary proposed a civil
penalty of $1,031.00 for the alleged violation.
In their settlement proposals, the parties agreed to reduce negligence from moderate to
low. To support this change, the parties explained that the vacuum’s parameters were compliant
at the beginning of the shift, which was reflected in the inspector’s contemporaneous notes. The
Secretary does not indicate who provided the inspector with that information or how much time
had elapsed. The parties also asserted that the difference between 10 and 12 in. Hg is not easily
detected by the roof bolter operator, but did not submit facts to support that supposition in
general or as it relates to this violation. In Exhibit J-2, the parties added that there was no
evidence to suggest an agent of the operator was aware of the pressure issue. They could not
determine the length of time the condition existed, and there was no evidence that the
concentration of respirable dust exceeded the standard.

41 FMSHRC Page 337

While the parties have submitted information that relates to the evaluation of negligence,
the information on its own does not justify a modification from moderate to low. The parties’
statement that no evidence exists to suggest an agent of the operator was aware of the pressure
discrepancy does not validate a reduction from moderate negligence to low. The standard of care
here revolves around whether a reasonably prudent miner knew or should have known of the
violative condition. Simply stating that an agent of the operator did not know of the condition,
when it has been admitted that the foreman was at the location when the inspector arrived, is not
enough. Also, there is no indication why a 2 in. Hg difference in pressure is not easily detected
by the roof bolt operator. Without that information, it is difficult to fully assess whether the
miner or operator should have known about the pressure differential. Just as with the citations
addressed previously, the entire settlement for the four ventilation violations was considered in
reaching the conclusion that the settlement is not supported by the record, and is not fair or in the
public interest. I therefore cannot accept the parties’ request to modify the negligence for this
citation. In addition, the Secretary has not met his burden to demonstrate the violation as alleged
in the citation, or the violation as modified.
IV. CONCLUSION
To prevail on a penalty petition, the Secretary bears the burden of proving an alleged
violation by a preponderance of the evidence. RAG Cumberland Res. Corp., 22 FMSHRC 1066,
1070 (Sept. 2000), aff’d 272 F.3d 590 (D.C. Cir. 2001); Jim Walter Res., Inc., 9 FMSHRC 903,
907 (May 1987). The Secretary may establish a violation by inference in certain situations, but
only if the inference is “inherently reasonable” and there is “a rational connection between the
evidentiary facts and the ultimate fact inferred.” Garden Creek Pocahontas Co., 11 FMSHRC
2148, 2152-53 (Nov. 1989). Once a ventilation plan has been approved and adopted, its
provisions are enforceable at the mine as mandatory standards. Martin County Coal Corp., 28
FMSHRC 247, 254 (May 2006). The Commission has recognized that a ventilation plan is
violated when an operator does not follow its specific terms. See Peabody Coal Co., 16
FMSHRC 2199, 2201-02 (Nov. 1994).
The parties submitted two motions and then joint stipulations in an effort to provide
evidence sufficient to approve the proposed settlement. When those attempts failed, the parties
submitted Exhibit J-2, the amended joint stipulation, as evidence for the violations at hearing.
The Commission decisions regarding settlement explain that it is the Commission Judge who
must review and approve a settlement. Further, the Judge is not required to blindly accept
assertions and conclusions that are not supported in law. If the Secretary cannot provide an
acceptable settlement and refuses to renegotiate the terms, the only other avenue is a hearing on
the merits. Here the hearing held on April 24 addressed the proposed settlement, the motions
filed by the Secretary, and the facts submitted in support of the Secretary’s position. Given that
an appropriate settlement was not submitted, the parties were expected to participate in the
hearing and provide evidence to support their positions.
At the hearing, the parties called no witnesses and entered no evidence into the record
except for Exhibit J-2, the Amended Joint Stipulation. The Secretary rested on the information

41 FMSHRC Page 338

contained in the settlement motions and Exhibit J-2. Accordingly, the record in this case
demonstrates that the Secretary did not meet his burden to establish the violations alleged in the
citations and therefore the citations are vacated and the case dismissed.
V.ORDER
Based on the above findings, there is no acceptable settlement agreement and the
Secretary has not met his burden of proof at hearing on the merits. Accordingly, the case is
hereby DISMISSED.

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

Distribution: (U.S. Certified First Class Mail)
Edward V. Hartman, Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn Street,
Room 844, Chicago, IL 60604
Michael T. Cimino, Jackson Kelly, PLLC, 500 Lee Street East, Suite 1600, Charleston, WV
25301
Alan S. VanCuren, Hopedale Mining LLC, P.O. Box 415, Hopedale, OH 43976

41 FMSHRC Page 339

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

June 27, 2019
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. LAKE 2018-0159
A.C. No. 12-02295-457966

v.
PEABODY MIDWEST MINING, LLC,
Respondent.

Mine: Francisco Underground Pit

DECISION AND ORDER
Appearances:

Barbara M. Villalobos, U.S. Department of Labor, Office of the Solicitor,
230 S. Dearborn Street, Room 844 Chicago, Illinois 60604
Arthur M. Wolfson, Fisher & Phillips LLP, One Oxford Center, 301 Grant
Street, Suite 4300, Pittsburgh, PA 15219

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 Peabody Midwest
Mining, LLC, (“Peabody” or “Respondent”), pursuant to the Federal Mine Safety and Health Act
of 1977 (“Mine Act”), 30 U.S.C. §801.1 At issue are two section 104(d)(2) Orders alleging
violations of 30 C.F.R. § 75.400 and 30 C.F.R. § 75.363(a), respectively. Peabody challenges the
fact of violation, S&S and gravity findings, and the negligence and unwarrantable failure
designations for each Order.
The parties presented testimony and documentary evidence at a hearing held in
Henderson, Kentucky on February 20, 2019. After fully considering the testimony and evidence
presented at hearing and the parties’ post-hearing briefs, I modify Order No. 9106459 to
moderate negligence and vacate Order No. 9106460. I assess a penalty of $2,500.00.

1

In this decision, the joint stipulations, transcript, the Secretary’s exhibits, and
Respondent’s exhibits are abbreviated as “Jt. Stip.,” “Tr.,” “Ex. S–#,” and “Ex. R–#,”
respectively.
41 FMSHRC Page 340

II. STIPULATIONS OF FACT
The parties jointly filed eight stipulations of fact in their prehearing reports and read
stipulations nine and ten into the record at hearing:
1. Peabody Midwest Mining, LLC, is an “operator” as defined in Section 3(d) of the Federal
Mine Safety and Health Act of 1977, as amended (Mine Act), 30 U.S.C. § 803(d), at the
time the citations at issue in this proceeding were issued.
2. Peabody Midwest Mining, LLC operated the Francisco Underground Pit located in
Francisco, Gibson County, Indiana at the time the subject violations were issued.
3. The Francisco Underground Pit mine is subject to the jurisdiction of the Federal Mine
Safety and Health Act of 1977.
4. 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.
5. The individual whose signature appears in Block 22 of the citations at issue in this
proceeding was acting in his official capacity and as an authorized representative of the
Secretary of Labor when the citations were issued.
6. A duly authorized representative of the Secretary served the citations and terminations of
the citations upon the agent of the Respondent at the date and place stated therein as
required by the Mine Act, and the citations and terminations may be admitted into
evidence to establish their issuance.
7. The total proposed penalty for the citations at issue ($23,519.00) will not affect the
Respondent’s ability to continue in business.
8. The Orders contained in Exhibit A attached to the Petition for Assessment of Penalty are
an authentic copy of the citations at issue in this proceeding with all appropriate
modifications and terminations, if any.
9. Citation No. 9106452, which is Secretary’s Exhibit S–8, is a final violation with all
original determinations. It was issued on October 31, 2017, at 8:45 a.m. and terminated
by MSHA at 10:15 a.m.
10. Citation No. 9106453, which is Secretary’s Exhibit S–9, is a final violation with all
original determinations. It was issued on October 31, 2017, at 8:55 a.m. and terminated
by MSHA at 10:18 a.m.
Secretary’s Prehearing Report at 2-3; Tr. 9.

41 FMSHRC Page 341

III. FINDINGS OF FACT AND SUMMARY OF TESTIMONY
Peabody Midwest Mining, LLC, owns and operates the Francisco Underground Pit, a
bituminous coal mine located in Gibson County, Indiana. At the time of the inspection, the
Francisco Pit had three working units. Tr. 140. Each unit contains two working sections. Tr. 140.
On the morning of October 31, 2017, MSHA Inspector Nicolas Vandergriff2 and
Supervisory Inspector Anthony DiLorenzo arrived at the mine to begin a routine inspection. Tr.
35, 139. Todd Seilhymer,3 a compliance officer at Peabody, accompanied the inspection. Tr. 139.
The party began the inspection in Unit 3 at the 3-C Beltline. Tr. 53-54, 139. Coal produced in
Unit 3 will dump onto the 3-C Beltline, transfer to 3-B, to 3-A, and finally up the main south belt
to the prep line. Tr. 141. Vandergriff issued two initial citations in the 3-C Beltline, one for
improperly spaced fire suppression and another for accumulations along the tail piece that
continued along 3-B. Exs. S–8, S–9; Tr. 143. Those citations were abated as the inspection party
proceeded to 3-B, where Vandergriff met with mine examiner Ryan Kyle Brown to observe his
examination of the beltline. Tr. 55. At this time, Seilhymer followed behind in a ride as the
Inspectors and Brown walked along the belt. Tr. 148.
Miners examine the conveyor belts at each working section once a shift. Peabody
conducts pre-shift examinations at the same time as its on-shift examinations. Examiners
evaluate any conditions they find and determine whether or not those conditions rise to the level
of a “hazard” that must be immediately addressed. If an examiner discovers a hazard, they will
address the situation immediately. If the examiner decides that the condition does not require
immediate attention, they will record the condition in the inspection book, and crews will address
the matter if they have time or pass the matter to the next crew. Once a condition is corrected, the
miner that completed the task will report to his supervisor, and one of those two miners will note
the correction in the inspection book. Tr. 220.
As Brown conducted the examination, Vandergriff noticed that accumulations of float
coal dust were present along the beltline. Tr. 149. He testified that the accumulations were
extensive and stretched from crosscut 28 to 23, measuring between one-eighth and one-quarter of
an inch. Tr. 58-59. He observed the accumulations on every horizontal structure, including the
belts, the ground, the water line, and all over the ribs. Tr. 58. Although he noted that the
accumulations existed for five shifts, at hearing Vandergriff estimated that the accumulations had
been present for two to three active shifts based on their extensiveness and because the beltline
was relatively new. Tr. 63, 120.

2

Vandergriff has been a MSHA Coal Mine Inspector since April of 2015. Tr. 32. Prior to
that, Vandergriff worked at Sunrise Coal in Carlisle, Indiana for nine years. Tr. 32. There he
worked in nearly every facet of the mine, from outby work to work on the unit. Tr. 32-33. He
also served as a foreman and belt examiner for over two years. Tr. 32-33.
3

Todd Seilhymer has been a coal miner for 22 years. Tr. 138. His job duties include
escorting MSHA inspectors, inspection recordkeeping and documentation. Tr. 138. He is a
certified mine foreman in Indiana and Illinois. He is also a certified examiner in Illinois. Tr. 138.

41 FMSHRC Page 342

At or around crosscut 23, Vandergriff reportedly asked Brown whether he considered the
accumulations to constitute a hazard or a condition. Tr. 57-58. Vandergriff testified that Brown
told him that he did in fact consider the accumulations to be a hazard but was instructed to write
it as a condition in the pre-shift inspection book. Tr. 58. According to Vandergriff, Brown told
him that they do not have enough examiners and that he often felt rushed to complete the exam
within the required timeframe. Tr. 58.
Brown disputed Vandergriff’s recollection. He testified that Vandergriff and DiLorenzo
accompanied him during his examination, but lingered behind him. Tr. 259. When he turned
back he noticed the inspectors kicking rock dust on the ground and asked them if there was an
issue. Tr. 259-60. Vandergriff then asked him if he believed the accumulations were a hazard. Tr.
263. When asked how he would categorize the accumulation, he told Vandergriff that he would
call it a condition because there was no heat source or gas present and the size of the
accumulations were not extensive and did not contain a significant amount of float coal dust. Tr.
260-63. He believed that the color of the material indicated that it was primarily road dust. Tr.
261. Brown also denied telling Vandergriff that he believed the accumulations constituted a
hazard in his view, but admitted saying sometimes it is hard to get the work done with limited
personnel. Tr. 264, 270-271. Brown also explained in his testimony that if the accumulations he
finds are in fact hazards he doesn’t write them in the examination book for the next shift to
address but proceeds to immediately address the hazards. Tr. 264.
Vandergriff and DiLorenzo conversed and decided that the accumulations warranted a
citation. Vandergriff asked Seilhymer to call out to see what examiners wrote about the belt line
in the pre-shift inspection book over the previous two shifts. Tr. 149. Seilhymer did so and was
informed that the book said that the 20 to the tail needed dusting, while 3-20 needed brooming.
Tr. 150. It did not list any hazards for the dates in question. Exs. S–6, S–7. Vandergriff then
issued the two (d) Orders at issue. He then proceeded from crosscut 29 to crosscut 3, taking
pictures and notes regarding the accumulations along the way. Tr. 61. He used a white piece of
notebook paper to note the contrast in color of the accumulations. Tr. 61. After he finished
photographing the area, Vandergriff exited to make copies of the pre-shift inspection book. Tr.
63-64.
Once Vandergriff issued the (d) Orders, Seilhymer called mine manager Mike Butler to
inform him that he was shutting off the beltline and to ensure that the mine did not start
abatement efforts until he completed his investigation. Tr. 151-52. Seilhymer remained in the 3B area after the Inspectors left to investigate on behalf of Peabody. Tr. 156. He had been alone
on the inspection and unable to both take notes and keep up with the Inspectors as they
photographed the belt line. Tr. 156. He proceeded to follow the Inspectors’ route as closely as
possible to take his own photographs and samples. Tr. 181. He used a paint chip, consisting of
three shades of gray, to compare the color of the accumulations. Tr. 159-60. Following
Seilhymer’s investigation, Peabody terminated the Orders on the morning of November 1, 2018.
Exs. S–2, S–3. The mine challenges the fact of violation; the gravity, negligence and
unwarrantable failure designations; and the Secretary’s penalty assessments for each Order.

41 FMSHRC Page 343

IV. LEGAL PRINCIPLES
A. Establishing a Violation
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).
The Secretary may establish a violation by inference in certain situations. Garden Creek
Pocahontas Co., 11 FMSRC at 2153. Any such inference, however, must be inherently
reasonable, and there must be a rational connection between the evidentiary facts and the
ultimate fact inferred. Mid-Continent Res., 6 FMSHRC 1132, 1138 (May 1984). If the Secretary
has established facts supporting the citation, the burden shifts to the Respondent to rebut the
Secretary’s prima facie case. Construction Materials, 23 FMSHRC 321, 327 (March 2001)
(ALJ).
B. Significant and Substantial
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

41 FMSHRC Page 344

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).
C. Negligence and Unwarrantable Failure
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).
The Mine Act defines 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
CFR § 100.3: Table X.
The Commission and its judges are not bound to apply the part 100 regulations that
govern MSHA’s determinations addressing the proposal of civil penalties. Newtown Energy,
Inc., 38 FMSHRC 2033, 2048 (Aug. 2016), citing Brody Mining, LLC, 37 FMSHRC 1687,
1701–03 (Aug. 2015). The Commission instead employs a traditional negligence analysis,
assessing negligence based on whether an operator failed to meet the requisite standard of care.
Brody, 37 FMSHRC at 1702. In doing so the Commission considers what actions a reasonably
prudent person familiar with the mining industry, the relevant facts, and the protective purpose of
the regulation, would have taken under the same circumstances. Id. Commission judges are thus
not limited to an evaluation of mitigating circumstances but may instead consider the totality of
the circumstances holistically.” Id.; see also Mach Mining, 809 F.3d 1259, 1264 (D.C. Cir.
2016).
More serious consequences can be imposed for violations that result from the operator’s
unwarrantable failure to comply with mandatory health or safety standards under section 104(d)
of the Mine Act. Section 104(d)(1) states:
If, upon any inspection of a coal or other mine, an authorized representative of the
Secretary finds that there has been a violation of any mandatory health
standard…and if he finds such violation to be caused by an unwarrantable failure
of such operator to comply with such mandatory health or safety standards, he
shall include such findings in any citation given to the operator under this Act.
“Unwarrantable Failure” is defined as aggravated conduct constituting more than
ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable
failure is characterized by such conduct as “reckless disregard,” “willful intent,” “indifference,”
or the “serious lack of reasonable care.” Id. at 2003-04; Rochester & Pittsburgh Coal Co., 13
FMSHRC 189, 193-94 (February 1991).
The Commission considers the following factors when determining the validity of
104(d)(1) and 104(d)(2) orders: (1) the length of time that the violation has existed and the extent
of the violative condition, (2) whether the operator has been placed on notice that greater efforts

41 FMSHRC Page 345

were necessary for compliance, (3) the operator’s efforts in abating the violative condition, (4)
whether the violation was obvious or posed a high degree of danger and (5) the operator’s
knowledge of the existence of the violation. Consolidation Coal Co., 22 FMSHRC 340, 353
(Mar. 2000). All of the relevant facts and circumstances of each case must be examined to
determine if an actor’s conduct is aggravated, or whether mitigating circumstances exist. IO Coal
Co., 31 FMSHRC 1346, 1351 (Dec. 2009).
D. 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 (March 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). These criteria are generally incorporated by the Secretary within a
standardized penalty calculation that results in a pre-determined penalty amount based on
assigned penalty points. 30 CFR 100.3: Table 1- Table XIV. If the conditions of the
violation so warrant, the Secretary may waive the regular assessment under § 100.3(a)
and specially assess a penalty. 30 C.F.R. § 100.5(a). The special assessment must also be
based upon the six criteria outlined above, and all findings must be in narrative form. 30
C.F.R. § 100.5(b).
V. DISPOSITION
The Secretary argues that the Court should affirm both Orders as written. Secretary’s
Post-Hearing Brief (“Sec’y Br.”) at 1. The Secretary contends that Respondent allowed float coal
dust to accumulate along the 3B energized conveyor belt. The violation involved in Order
9106459 was S&S because the float dust accumulations were extensive and were located
approximately one crosscut, or 35 to 50 feet, from the tail belt area, where Vandergriff also
issued two separate S&S citations not at issue in this case for accumulations and improperly
spaced fire suppressor sprinklers during the same inspection. Id. at 3-5, 8-9. The Secretary
maintains this confluence of factors was thus likely to result in ignition or fire because the
accumulations were extensive along the beltline and some were even in contact with the moving
belt. Id. at 8. The Secretary also argues that the high negligence and unwarrantable failure
determinations are proper because Peabody had previously been placed on notice that greater
compliance efforts were necessary. Id. at 18, 25. The accumulations were obvious and extensive
as demonstrated by photos taken by Inspector Vandergriff, existed for multiple shifts, and posed
a serious risk of danger due to the presence of an ignition source. Id. at 18-23. Peabody managers
and mine examiners had knowledge of or should have known of the condition yet failed to abate

41 FMSHRC Page 346

the violative condition. Id. at 23-25. Specifically, when asked by Vandergriff mine examiner
Brown said he considered the observed condition to be a “hazard” but was instructed by
management to write it down as a “condition.” Id. at 15. Peabody also has a history of violations
of the cited standard and was on “heightened negligence” for violations of § 1731(a) which
requires damaged belt conveyor components that pose a fire hazard to be repaired or replaced
immediately. Id. at 25.
The Secretary contends that Peabody violated section 75.363(a) because the mine failed
to immediately address the accumulations, which constituted a hazard. The Secretary points out
that, despite the obvious hazard posed by these accumulations, mine examiners continued to
identify the accumulation as a “condition” in the pre-shift inspection book for the beltline, and
did not address it for multiple shifts. As such, the Secretary requests that the Court uphold both
Orders and affirm the specially-assessed penalty of $23,519.00. Id. at 15, 20-21, 31.
Peabody seeks to have both Orders vacated. It argues that the accumulations around the
beltline were not combustible coal dust, but rather a combination of rock dust and road dust with
low amounts of permitted float dust. Respondent’s Post-Hearing Brief (“Resp. Br.”) at 18.
Respondent contends that it did not violate section 75.400 because it did not permit the cited
material to accumulate as it consistently detected and corrected any material around the beltline,
and that the material cited in Order No. 9106459 was not combustible. Id. at 20-21. Even
assuming that a violation is found, Peabody argues that it was not S&S because no ignition
source existed near the beltline and the cited material was sufficiently mixed with incombustible
rock dust and road dust. Id. at 30, 31. Specifically, the conditions relied upon by the Secretary as
the potential ignition source that led Vandergriff to issue an accumulations citation, not at issue
in this case, at the 3C beltline ended at cross cut number 29 whereas the condition under
examination in this matter began at crosscut 28. Id. at 30. Furthermore, Peabody contends that
the high negligence and unwarrantable failure designations are inappropriate because the mine
examination records indicate that it adequately detected and corrected any conditions involving
material along the beltline. Id. at 33-35. In addition, mine examiner Brown emphatically denied
telling Vandergriff he would have characterized the noted accumulations at issue as “hazards”
and that he was instructed to write them in his exam book as “conditions”. Id. at 38-39.
Peabody also argues that Order No. 9106460 should be vacated because the condition
was non-hazardous and did not need to be immediately corrected. Id. at 33-35, 37. Specifically,
Respondent argues that the condition listed in the pre-inspection book was different than the one
the inspector observed the following shift because additional production occurred in the interim.
Id. at 35-36. It further argues that the observed accumulation did not amount to a “hazard” as
defined by the standard and did not need to be corrected immediately. It contends that the
condition was largely incombustible, that its color indicated that the material was primarily road
dust, and that sufficient rock dust was present. Id. at 24-26, 29, 33-35, 37. Respondent contends
that it would have addressed the matters the following day shift, which is within MSHA’s
requirements and company policy. Id. at 33-35. Peabody thus argues that it properly tailored its
procedure to comply with section 75.363(a) and was taking appropriate steps to ensure that
accumulations did not become hazards. Id. at 33-35. Finally, Peabody maintains that to the
degree that any violation is found, the assessed penalties are excessive in that the Secretary has
not met his burden of proof to justify the specially assessed penalty for Order No. 9106460, the

41 FMSHRC Page 347

unwarrantable failure designations, high negligence levels nor the S&S findings for either Order
No. 9106460 or 9106459. If violations are found, it proposes a regularly assessed, moderate
negligence level, non S&S penalty of $232 for Order No. 9106460 and $477 for Order No.
9106459.
A. Order No. 9106459
Order No. 9106459 alleges:
Combustible materials shall not be allowed to accumulate in active workings.
Accumulations in the form of float coal dust was observed along the 3 B
energized conveyor belt ranging from a film up to ¼ inch in depth from XC #3 to
XC #28. Float coal dust was observed deposited on top of rock dusted surfaces
including the mine floor, coal ribs, belt structure, water line, and all other vertical
surfaces. This violation is an unwarrantable failure to comply with a mandatory
standard.
Ex. S–2. Inspector Vandergriff designated the violation as S&S, with high negligence, and as
an unwarrantable failure to comply with a mandatory safety standard. The Secretary assessed
a penalty of $7,819.00.
1. The Violation
30 C.F.R. § 75.400 states that “[c]oal dust, including float coal dust deposited on rockdusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not be
permitted to accumulate in active workings, or on diesel-powered and electric equipment
therein.”
The parties do not dispute that accumulations of material existed in the cited areas.
Inspector Vandergriff credibly testified that the accumulations measured one quarter to one
eighth of an inch and were extensive along the entire beltline. Tr. 58, 95-96. He took
photographs demonstrating accumulations all along the beltline. See Ex. S–5. Relatively dark
accumulations are present on the ground and across the belt structure. Id., pp. 1-4, 9-12, 15-18.
Photographs show footprints in the accumulated material along crosscuts 9-10 and crosscut 17.
Id., pp. 5-8, 21-22. The photographs also indicate some accumulation on the ribs and walkway
along crosscut 12 to 14. Id., pp. 13-14.
The parties’ primary dispute is over what materials were present in the accumulation and
whether that mixture was combustible under the standard. Seilhymer’s pictures and samples
appear to cast doubt on the exact composition of the accumulations based upon his inclusion of a
paint chip to demonstrate the varying shades of gray. Ex. R–B; R–G. Many of his photographs
also show lighter colors of grey or white near and underneath the belt floor and on the ribs. Id.,
pp. 7, 8, 21, 22, 23, 33-34. He testified that the lighter colors indicated that the accumulations
consisted mostly of road dust and not coal dust. Tr. 162-63. Other pictures also indicated the
presence of moisture, thereby reducing the combustibility of the accumulations. Ex. R–35, 36,
80; Tr. 166, 171. Overall, Seilhymer testified that he saw very little evidence, if any, of coal dust

41 FMSHRC Page 348

accumulations in his photographs. Tr. 210. He also testified that the samples, with the exception
of a single sample, were all well within the prescribed incombustibility limits. Ex. R–G(2); Tr.
184-85. However, Seilhymer acknowledged that he was unable to take pictures in the exact same
areas as Vandergriff because he did so after the initial inspection ended. Tr. 156-57.
Furthermore, the material’s shading varied significantly in different areas when compared to the
paint chip, with some photographs showing much darker shades than others. See generally, Ex.
R–B. Seilhymer also acknowledged that some of the photographs could have been affected by
the camera flash or the printer. Tr. 199.
Upon review, I conclude that a sufficient amount of coal dust was present to affirm the
violation. See Exs. S–5, R–B. The shades of accumulations varied and some showed dark gray
accumulations, indicating that at least some float coal dust was present in the photographed
areas. Id. Although some areas appeared lighter in color, the camera flash, which both
Vandergriff and Seilhymer acknowledged affected the photographs, would tend to make the
accumulations look lighter in color rather than darker.
Moreover, Respondent’s samples of the material in the area indicated that at least some
of the material did not meet MSHA’s incombustibility standards. See Ex. R–G(2).4 One of the
samples taken tested less than 80% incombustible, which Respondent acknowledged at hearing
to be below MSHA’s required threshold. Tr. 185. While the exact concentration may have
differed throughout the cited area, I find that the evidence supports that Peabody failed to address
existence of combustible accumulations along the beltline.
Accordingly, I affirm the fact of violation.
2. Significant & Substantial
I have already found that Peabody Midwest violated section 75.400, a mandatory safety
standard, when it allowed coal dust and other materials to accumulate along the 3-B beltline. The
first Mathies element is therefore satisfied.
I next turn to whether the violation was reasonably likely to contribute to the hazard
contemplated by the standard. Section 75.400 is intended to prevent accumulations of material
that could lead to an ignition or propagation of a fire or ignition hazard. 30 C.F.R. § 75.400.
Here, the Secretary has demonstrated that a confluence of factors exists around the violation that
would reasonably contribute to the contemplated hazard. Earlier in the inspection, Vandergriff
4

The Secretary cites to the Commission’s decisions in Black Diamond Coal Mining Co.,
7 FMSHRC 1117 (Aug. 1985) and Mid-Continent Resources, Inc., 16 FMSHRC 1218 (June
1994) to argue that Peabody’s sample analyses (Ex. R–G(2)) are irrelevant and thus
inadmissible. I reject the Secretary’s claim. Although these cases do imply that a material need
not have a high level of combustibility to qualify as S&S, they do not suggest that combustibility
in itself is irrelevant. See 16 FMSHRC at 1222; 7 FMSHRC at 1120-21. Both cited provisions
either explicitly mention combustibility or require a consideration of combustibility to determine
whether a condition is hazardous, and are thus clearly relevant to the sample tests and are
admitted into evidence.

41 FMSHRC Page 349

issued citations alleging accumulations and Peabody’s failure to install fire suppression
sprinklers within the prescribed intervals along the conveyor branch lines located along the 3C
beltline which is adjacent to the 3B. See Ex. S–8, S–9. Both of those citations were S&S because
coal was running in the belt, creating an ignition source near the beltline. Tr. 113-114. He also
testified that the mine was already on heightened negligence for bad belt rollers, increasing the
opportunity for friction to create a heat source and ignite the accumulations. Tr. 66-67.
Furthermore, he took two additional photographs that show the accumulations near the diesel
fuel station and touching the belt on the 3-B tail roller. Ex. S–5, pp. 31-34; Tr. 113-14. The
violation involved in Order 9106459 is located approximately one crosscut, or 35 to 50 feet,
from this tail belt area ignition source. The accumulations were on the tail roller of the 3-B, the
head roller of the 3C. Tr. 67. It is important to note here that Respondent’s mine examiner Brown
was not present for and was unaware of the issuance of the citations issued by Inspector
Vandergriff on the 3C beltline, thus explaining his insistence that an ignition source did not exist
along the 3B beltline at issue in this case. Tr. 271. Finally, I credit Inspector Vandergriff’s
testimony that he believed the violations he found on the 3C beltline had co-existed for two to
three shifts with those on the 3B beltline. Tr. 67-68. My evaluation here also must take into
account an assumption of continued mining operations absent the inspector discovering the
hazardous conditions on the 3C beltline. For these reasons, I reject Respondent’s argument that
the violations found on the 3C beltline were abated by the time the inspector discovered the
accumulations at issue in this case along the 3B beltline, thus eliminating the potential ignition
source. Given the size of the accumulations along the 3B beltline and potential presence of a heat
source in the area, I find that the violation was reasonably likely to result in an ignition.
Peabody contends that the violation was not reasonably likely to contribute to an ignition
or fire because the majority of the cited accumulations consisted of road dust or rock dust and
thus were unlikely to combust. Resp. Br. at 18-19, 24-26, 29, 33-35, 37. It offered sample
analyses taken from the cited areas to show that nearly all of the alleged accumulations were
above the acceptable incombustible level. Ex. R–G(2). However, at least one of those samples
did not meet the minimum incombustibility level, and although the level of combustibility may
have been low, “coal is, by its nature, combustible.” Mid-Continent Res., 16 FMSHRC 1218,
1222 (June 1994). The Secretary has satisfied the second Mathies element.
I credit Vandergriff’s testimony that the hazard was reasonably likely to result in serious
injuries such as flash burns or smoke inhalation. Tr. 70. Vandergriff testified that float coal dust
was allowed to accumulate in numerous areas, including under the B belt tail roller, where the
accumulations were in contact with the moving belt. Tr. 65. Since the fire suppression system
would not be able to put the fire out and air ventilates outby in the mine, any fire would likely
proceed along the 3-B belt line, the same path that served as the secondary escape way. Tr. 67,
Sec’y Br. At 14-15. Due to the ventilation system in the area, an ignition may cause smoke
inhalation injuries to any miner working downwind. Tr. 70. Assuming continuous normal mining
operations, these accumulations were reasonably likely to result in an ignition that could cause
flash burns and smoke inhalation injuries that would result in lost workdays.
Accordingly, I find that the violation was S&S.

41 FMSHRC Page 350

3. Negligence and Unwarrantable Failure
Inspector Vandergriff designated the citation as high negligence and an unwarrantable
failure. The Commission has recognized the close relationship between a finding of high
negligence and a finding of unwarrantable failure. See Dominion Coal Corp., 35 FMSHRC 1652,
1663 (June 2013) (ALJ), citing San Juan Coal Co., 29 FMSHRC 125, 139 (Mar. 2007).
a. Operator’s Knowledge of the Violation
An operator’s knowledge of a violation is an important factor in unwarrantable failure
analysis and is a requirement for a finding of high negligence under 30 C.F.R. § 100.3. Maryan
Mining, LLC, 37 FMSHRC 1715, 1723 (Aug. 2015) (ALJ). Where an agent of an operator has
knowledge or should have known of a safety violation, such knowledge should be attributed to
the operator. Martin Marietta Aggregates, 22 FMSHRC 633, 637 (May 2000). The knowledge or
negligence of an agent may be imputed to the operator. Id.
Due to the extensiveness of the violation and the fact that mine management was required
to sign the pre-inspection book, the Secretary argues that Peabody should have been aware that
the accumulations constituted a hazard. Tr. 71. Vandergriff testified that the condition along 3-B
was so obvious that any properly trained miner would identify that as a hazard that required
immediate correction. Tr. 71-72.
Peabody was aware of the accumulations. Its examiners wrote about the accumulations in
the belt line pre-inspection book. Exs. S–6, S–7. Those examiners, however, did not believe that
the accumulations consisted of much float coal dust, if any, or that the accumulation was
otherwise so severe or hazardous that it required immediate attention. The inspection books thus
recommended brooming5 or dusting the accumulations when possible. Exs. S–6, S–7.
b. Extent and Duration of the Violation
Inspector Vandergriff testified that the accumulations were extensive all along the belt
line. Tr. 71. He took numerous pictures that clearly show accumulations in multiple areas. Ex. S–
5. Moreover, the violation existed for two to three shifts and was extensive along the beltline.6
Tr. 63. However, the extensiveness and duration can both be attributed to Peabody’s consistent
belief that the accumulations were not combustible because they consisted primarily of road dust,
and thus did not require immediate remediation.

5

Brooming is a method, alternative to dusting, by which miners use a broom to
sufficiently mix any coal dust accumulations with rock dust to eliminate a combustion hazard.
Tr. 40-41.
6

Although Vandergriff’s inspection notes indicate that the condition existed for five
shifts, he clarified that the fifth shift included Brown’s examination shift and that the mine would
have been idle for two of the shifts. Tr. 115.

41 FMSHRC Page 351

c. Obviousness of the Hazard and Degree of Danger
As discussed above, the accumulations were obvious along the beltline but were not
perceived to be a hazard during Peabody’s pre-shift examinations. Peabody’s miners credibly
testified that in instances where a hazard was observed they would have immediately addressed
the matter rather than writing it down in the book to pass it on for the next shift to address. Tr.
219, 253. Their testimony is supported by the pre-inspection books. See Ex. S–6. Listed hazards
were addressed, while conditions, including those cited here, were noted and passed on as
permitted by the regulations and mine policy. Id. Thus, while the accumulations themselves were
obvious, the compositions of the accumulations remain the primary source of dispute between
the parties. Given these factors, I find that the obviousness of the hazard and degree of danger
were not significant factors weighing against Peabody’s negligence.
d. Abatement Efforts
Abatement efforts relevant to the unwarrantable failure analysis are those made prior to
the issuance of the citation or order. Consolidation Coal Co., 35 FMSHRC 2326, 2342-43 (Aug.
2013); New Warwick Mining Co., 18 FMSHRC 1568, 1574 (Sept. 1996).
Peabody’s pre-inspection books and the corroborating testimony of its miners
demonstrate a systematic approach to examining the beltline and both documenting and
addressing conditions and hazards. Vandergriff testified that the accumulations were extensive
enough to suggest that it could not have accumulated over the course of a single shift. Tr. 11415. However, there is no evidence to suggest that Peabody’s abatement efforts were insufficient
or that, if not for the citation, the conditions would have been allowed to remain or worsen over a
long period of time. Peabody’s inspectors outlined the action to be taken in their view, either
dusting or brooming the areas, that would likely have been taken care of shortly thereafter and
before the mine considered the accumulations to become a serious hazard.
e. Notice to the Operator that Greater Efforts Were Necessary for Compliance
The notice factor of the unwarrantable failure analysis pertains to previous citations,
directives, and communications prior to the violation at issue that notify the operator of
hazardous conditions or practices. Consolidation Coal Co., 22 FMSHRC 2326, 2342 (Aug.
2013); IO Coal Co., 31 FMSHRC 1346, 1353-55 (Dec. 2009).
Here, Peabody had been cited for violations of § 75.400 on 146 occasions over the past
two years. Ex. S–1. It was also placed on heightened negligence regarding bad belt rollers,
suggesting that accumulations may be more subject to ignition risks. Tr. 24, 65-66. However,
Inspector Vandergriff acknowledged at hearing that section 75.400 is a very broad standard, and
can be used to cite for conditions other than float coal dust accumulations in the mine, including
but not limited to other combustible materials, hydraulic oil, and trash. Tr. 106-107. He also
testified that he did not observe any bad rollers along the 3-B beltline during the inspection at
issue. Tr. 72.

41 FMSHRC Page 352

f. Conclusion
Based on the foregoing, I find that the violation did not constitute an unwarrantable
failure to comply with the standard. Although Peabody had knowledge of the accumulations,
which were obvious and extensive along the beltline, I do not find sufficient evidence that the
mine’s efforts were unreasonable or constituted more than ordinary negligence. Peabody
recorded the condition in its pre-inspection book for the beltline as something that ought to be
addressed when time permitted, but that it did not amount to a hazard. It systematically
addressed the matters according to its examination schedule, and there is no evidence that the
accumulations would have been ignored for significantly more shifts. There is no evidence that
Peabody knowingly ignored a hazard or would have done so if it believed the accumulations to
constitute a hazard. “If an operator acted on the good-faith belief that its cited conduct was
actually in compliance with applicable law, and that belief was objectively reasonable under the
circumstances, the operator’s conduct will not be considered to be the result of unwarrantable
failure when it is later determined that the operator’s belief was in error.” Kelly Creek Res., Inc.,
19 FMSHRC 457, 463 (Mar. 1997); Black Beauty Coal Co., 36 FMSHRC 778, 788-89 (Mar.
2014) (ALJ). I therefore find that the unwarrantable failure designation is inappropriate in this
circumstance.
I therefore reduce Peabody’s negligence to moderate and remove the unwarrantable
failure designation.
4. Penalty
The Secretary proposed a penalty of $7,819.00. Peabody has had 146 previous violations
of section 75.400 over the past two years. Ex. S–1. The parties stipulated that the penalty amount
will not affect Peabody’s ability to remain in business. Jt. Stip. # 7. Peabody quickly abated the
citation by shutting down the belt line and rock dusting the entire 3-B beltline, removing all float
coal dust following the mine’s own investigation. Ex. S–2.
I have discussed my gravity and negligence findings in detail above. Peabody violated the
standard and the violation was S&S and reasonably likely to result in lost workdays. I modified
Peabody’s negligence to moderate and removed the unwarrantable failure designation because
there is no evidence indicating that Peabody had a lax attitude toward addressing accumulations
that it deemed to be hazardous, but simply did not consider the cited accumulations to merit
immediate action. Accordingly, I assess a penalty of $2,500.00.
B. Order No. 9106460
Vandergriff issued Order No. 9106460 alleging:
Hazardous conditions shall be corrected immediately or the area shall remain
posted until the hazardous condition is corrected. Hazardous conditions have
existed on the 3B beltline for 5 consecutive shifts. These hazards have been listed
in the “conditions observed” side of the company’s belt inspection report book
and have been continually carried over onto the next working shift without an

41 FMSHRC Page 353

action taken to immediately correct the hazards found. This is an unwarrantable
failure to comply with a mandatory safety standard…
Ex. S-3. Inspector Vandergriff designated the violation as S&S, the result of high negligence,
and as an unwarrantable failure. The Secretary specially assessed a penalty of $15,700.00.
1. Fact of Violation
30 C.F.R. § 75.363(a) states:
Any hazardous condition found by the mine foreman or equivalent mine official,
assistant mine foreman or equivalent mine official, or other certified persons
designated by the operator for the purposes of conducting examinations under this
subpart D, shall be posted with a conspicuous danger sign where anyone entering
the areas would pass. A hazardous condition shall be corrected immediately or the
area shall remain posted until the hazardous condition is corrected. If the
condition creates an imminent danger, everyone except those persons referred to
in section 104(c) of the Act shall be withdrawn from the area affected to a safe
area until the hazardous condition is corrected. Only persons designated by the
operator to correct or evaluate the hazardous condition may enter the posted area.
Any violation of a mandatory health or safety standard found during a preshift,
supplement, on-shift, or weekly examination shall be corrected.
In order to establish a violation, the Secretary must demonstrate that hazardous
conditions existed and that the hazard had not been corrected or posted. Black Beauty Coal Co.,
33 FMSHRC 1504, 1511 (June 2011) (ALJ). Once the existence of a hazard has been
established, the focus shifts to the actions taken, if any, to remediate the condition. Id. There is
no dispute that Peabody’s examiners found the condition and recorded it in the belt inspection
report book as such. Thus, the validity of the Order rests on whether the accumulations along the
beltline constituted a “hazardous condition” as identified by the standard.
The Commission has approved the definition of “hazard” in the context of section 75.360
to be “a possible source of peril, danger, duress, or difficulty,” or “a condition that tends to create
or increase the possibility of loss.” Black Beauty Coal Co., 36 FMSHRC 778, 786 (Mar. 2014)
(ALJ) (citing Enlow Fork Mining Co., 19 FMSHRC 5, 14 (Jan. 1997)). That definition is equally
applicable here.
Vandergriff believed the accumulations constituted a hazard because they were extensive
along the entire beltline and created an ignition risk. Tr. 73-74. He noted that the conditions had
been allowed to worsen over a couple of shifts, when they should have been immediately
addressed. Tr. 74. Seilhymer testified that an ignition source was not required in order for an
accumulation to be a hazard, but it would escalate the situation to that of a hazard if an ignition
or heat source was present. Tr. 194, 207. He noted that a hazard would entail a high
concentration of coal dust dark in color. Tr. 194. If the accumulation reached a certain amount
and shade of darkness, an examiner would appropriately understand when immediate action was
necessary. Tr. 194-95. However, he acknowledged that this may differ based on the individual

41 FMSHRC Page 354

examiner. Tr. 195. Normally, however, the goal is to address the condition long before it
escalates to a hazard. Tr. 195. He testified that he did not believe any of the accumulations
amount to a “hazard” as contemplated by the examination standards. Tr. 208.
Miner Casey Winters testified that a hazard is a condition that requires immediate
attention, while a condition is not time sensitive. Tr. 221. In the context of an accumulation,
Winters testified that he believed the transforming factor would be a heat or ignition source. Tr.
222. He noted that he would not have called any of the cited accumulations a hazard. Tr. 234-42.
However, after seeing photographs of an accumulation, he testified that he would have at the
very least shoveled it out and if need be shut the belt down to do so safely. Ex. S–5; Tr. 230-31.
Respondent’s Mine Examiner Brown also confirmed that in the context of an accumulation near
the beltline, a heat source was necessary to constitute a hazard. Tr. 254. At no point during his
examination did he believe there to be an ignition source or any hazard along the belt line. Tr.
267. However, he was unaware of the citations issued by Vandergriff along the 3C beltline
immediately prior to inspecting the 3B beltline. Tr. 271. He noted that he would be able to tell if
coal dust accumulated because it is coarse and does not mix with rock dust. Tr. 268-69.
Although I found that the accumulations were reasonably likely to create a hazard, they
did not amount to such a level at the time of the inspection. The Secretary has not shown that any
of the accumulations created a potential for immediate danger. Although some photographs
showed evidence of coal dust in accumulations of material, Respondent provided strong
evidence that most of these accumulations were mixtures of road and rock dust that neutralized
any presence of coal dust. It is critical to note that the Secretary failed to address Respondent’s
evidence on this point in their case in chief or by proffering any rebuttal on this issue. None of
the photographs offered by either party indicate significant evidence of large amounts of coal
dust. This assertion is supported by the majority of Peabody’s samples, which were well above
the minimal incombustibility level. Ex. R–G.
Furthermore, Peabody’s examination books show that, it consistently noted ongoing
accumulations issues and corrected them as necessary. I find that Brown credibly testified in an
unwavering, forthright and consistent manner, supported by his essentially contemporaneous
notes, that he did not consider any of the conditions to be a hazard and the specific reasons for
that belief, contrary to Inspector Vandergriff’s notes, and would have immediately addressed the
matter had he believed otherwise. Ex. S-10. Vandergriff testified that Brown told him he was
instructed to note the accumulations at issue as conditions in his examination book even when he
believed they were hazards. However, Vandergriff’s own notes do not reflect that is what Brown
told him. Rather the notes merely indicate that when asked if Brown considered the
accumulations to be a hazard or condition he said, “that he considers this a hazard but is told it is
a condition.” Ex. S-4, 47-48. I find it implausible to believe, given his testimony, that
Vandergriff would not have specifically noted had Brown actually told him he was instructed to
write conditions in the book when he found hazards. Brown, on the other hand, in an earnest and
convincing fashion testified that had he found the accumulations hazardous, he would not have
noted them in his exam book for the next shift to address, but rather immediately addressed
them. Tr. 264.

41 FMSHRC Page 355

This credibility dispute, while important, does not take away from the fact that the
Secretary failed to rebut Respondent’s primary defense that the observed accumulations along
the 3B beltline were made up of primarily road dust from the adjacent travelway and rock dust
with smaller non-combustible levels of coal dust, constituting a condition rather than a hazard.
This, in conjunction with the totality of the evidence and testimony proffered and noted above,
leads me to conclude that at the time of the pre-shift examination what Brown observed were in
fact conditions rather than hazards which did not require immediate attention but needed to be
addressed in a timely fashion at the end or beginning of the respective shifts.
Accordingly, Order No. 9106460 is VACATED. For these reasons, I need not address
the Secretary’s S&S, high negligence, and unwarrantable failure designations.
VI. ORDER
Respondent is hereby ORDERED to pay the Secretary of Labor the total sum of
$2,500.00 within 30 days of this order.7

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

Distribution: (U.S. Certified First Class Mail)
Barbara M. Villalobos, U.S. Department of Labor, Office of the Solicitor , 230 S. Dearborn
Street, Room 844, Chicago, IL 60604
Arthur M. Wolfson, Fisher & Phillips LLP, One Oxford Center, 301 Grant Street, Suite 4300,
Pittsburgh, PA 15219

7

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

41 FMSHRC Page 356

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004-1710
PHONE: (202) 434-9933 | FAX: (202) 434-9949

June 27, 2019
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.

CIVIL PENALTY PROCEEDING
Docket No. PENN 2018-0116
A.C. No. 36-10045-453471

CONSOL PENNSYLVANIA COAL
COMPANY, LLC,
Respondent.

Mine: Harvey Mine

DECISION AND ORDER
Appearances: Maria Del Pilar Castillo, Esq., Office of the Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania for the Petitioner
Patrick Wayne Dennison, Esq., Fisher Phillips LLP, Pittsburgh, Pennsylvania for
the Respondent
Kenneth Polka, CLR, U.S. Department of Labor, MSHA, Mount Pleasant,
Pennsylvania
Before:

Judge William B. Moran

This case is before the Court upon a petition for assessment of a civil penalty under
Section 105(d) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. §
815(d) for failure to keep travelways clear of obstruction, in violation of 30 C.F.R. § 75.205(b).
A hearing was held in Pittsburgh, Pennsylvania on February 12, 2019. The Secretary of Labor
(“Secretary”) proposes a $625.00 penalty for the issues in this matter. For the reasons that
follow, the Court upholds the violation, but modifies the citation in part and imposes a penalty of
$200.00 to Consol Pennsylvania Coal Company, LLC (“Respondent”).

41 FMSHRC Page 357

Violations at Issue in Docket No. PENN 2018-0116
At issue in Docket No. PENN 2018-0116 is one 104(a) citation,1 Citation No. 9076875.
Citation No. 9076875 alleged a violation of 30 C.F.R. 77.205(b).2 The MSHA inspector
assessed the likelihood of injury as “reasonably likely,” with an expected injury of “lost
workdays or restricted duty.” The violation was listed as significant and substantial, with one
person affected. Negligence was listed as “moderate.” The condition or practice alleged stated:
Travelways and platforms or other means of access to areas where persons are
required to travel or work, shall be kept clear of all extraneous material and other
stumbling or slipping hazards. On the slope belt near the mouth there were
multiple tripping/slipping hazards on the elevated graded walkway. There was a
1.5" wash down hose on the steps and a 64" roller and coal spillage at the top of
the stairs. It was raining during my inspection which limits visibility and traction.
This belt is firebossed every shift in its entirety.
Standard 77.205(b) was cited 3 times in two years at mine 3610045 (1 to the
operator, 2 to a contractor).
Citation No. 9076875.
The citation was issued at 10:58 AM on October 23, 2017. The citation was terminated
seven minutes later, at 11:05 AM that same day, with the notation that “[t]he hazards were
removed from the walkway.” Id.
Joint Stipulations & Findings of Fact
The Secretary submitted a post-hearing brief (“Secretary’s Brief”) on April 19, 2019, as
did the Respondent (“Respondent’s Brief”). The parties stipulated that the Harvey Mine was a
“mine” within the meaning of the Mine Act, and subject to the jurisdiction of MSHA under the
Mine Act. Secretary’s Brief at 2.
The Secretary and Respondent agreed that a violation of 30 C.F.R. § 77.205(b) as
described in Citation No. 9076875 occurred. Tr. 20. The parties also stipulated that the expected
injury in this matter was Lost Workdays or Restricted Duty. Tr. 62-63. However, the Secretary
1

A separate citation – Citation No. 7031476 – was originally part of this docket.
However, that citation was issued 20 days prior to Citation No. 9076875, involved a different
inspector, and was resolved by a separate Decision Approving Settlement which is being issued
contemporaneously with this decision. See Decision Approving Settlement, PENN 2018-0116
(unpub. order) (June 27, 2019).
2

30 C.F.R. § 77.205, titled “Travelways at Surface Installations” provides in subsection
(b), “[t]ravelways and platforms or other means of access to areas where persons are required to
travel or work, shall be kept clear of all extraneous material and other stumbling or slipping
hazards.”

41 FMSHRC Page 358

argued that the injury was reasonably likely, Tr. 19, while the Respondent contended that the
expected injury was unlikely. Tr. 12. The Secretary also argued that the violation was significant
and substantial, Secretary’s Brief at 5, while the Respondent countered that the violation was not
significant and substantial. Respondent’s Brief at 8.
Testimony of MSHA Inspector Lawrence Piko
MSHA Inspector Lawrence Piko was the Secretary’s sole witness in this matter, and
testified first. Piko has been an inspector with MSHA for the past four years. Tr. 24. Before his
time at MSHA, Piko worked five years for Consol Energy at their Bailey Mine.3 Tr. 25.
Piko received MSHA’s mandatory 22-week inspector training, and received what he referred to
as “blur training,” which he described as MSHA’s attempt to combine training for metal, nonmetal, and coal miners into a single course. Tr. 25-26.
On October 23, 2017, Inspector Piko arrived at the Harvey Mine to conduct an EO1
inspection, which covers “every part of the mine, surface and underground.” Tr. 27. On that
particular day, Piko covered the surface of the mine. Id. Upon his arrival at the mine, Piko went
to the shop area, where he met Respondent’s employee Matt West. As none of the Respondent’s
safety representatives volunteered to travel with Piko, West accompanied the inspector for his
surface inspection. Tr. 29. Piko first reviewed the mine file, looking for prior accidents and
citations logged in the file before conducting the surface inspection. Piko testified that there had
been six accidents “involving something similar to this citation.” at the mine. Tr. 30.
After reviewing the mine file, Piko went to the long belt identified in the photo labelled
Joint Ex. J-1. Tr. 36. After walking the long belt, Piko and West went to the top of the silos
indicated in J-1 to inspect for a variety of safety hazards, such as methane concentrations and
faulty electrical wiring. Tr. 37.4 No such violations were found. Piko and West then returned to
the transfer building, made their way to the top, and began walking down the slope belt. Id. Piko
asserted that there were five different tripping hazards in this portion of the slope belt: a roller, a
plastic bag, a water hose, and some accumulations of coal. Tr. 46. He estimated the roller was
approximately 64 inches in length. Id. At the hearing, Piko marked on Ex. J-1 with a red pen
indicating where the hazards identified in Citation No. 9076875 were on the slope belt. Tr. 39.
Piko took a photo of the area that was later admitted at hearing as Ex. P-2.
At that point, Inspector Piko decided to write a citation for a violation of the travelway
obstruction standard: 30 C.F.R. § 75.202(b). Tr. 45. He said he considered writing the negligence
for this citation as “high” rather than “moderate,” because West informed him that “a certified
individual, fireboss or mine examiner” was in that area “a few hours before.” This meant

3

That mine is not the subject of this hearing.

4

At this point in his testimony, Piko indicated that he issued a citation for tripping
hazards at the top of the silos. Tr. 37. That citation is not a part of this docket.

41 FMSHRC Page 359

“[s]omeone had to have seen that [the alleged tripping hazards] or at least walked away.”5 Tr. 48.
He indicated in his notes that West informed him the area was firebossed6 between 5:00 AM and
8:00 AM that morning. Ex. P-1, at 11.7 Piko then testified that the cited walkway is the only
walkway on that particular belt, meaning that any individual travelling this belt would have to
use this walkway. Tr. 51. The inspector made this distinction because the other belt depicted in
Ex. J-1 has walkways on both sides of the belt. Id.
Inspector Piko next stated that he served the citation to West, as West was the individual
travelling with him on that particular day. Tr. 51. According to Piko, West stated that
independent contractors employed by GMS8 worked there, though he was unsure exactly how
many. Tr. 52. He testified that West did not contest the citation as the inspector wrote it, and that
he recalled that Matt West “even shook his head in disappointment that stuff like this was left”
on the walkway. Tr. 52-53. The inspector then testified that West immediately began abating the
citation. Tr. 53. Piko did not walk through the area himself, noting that “it would be pretty hard
to make it an S&S if you’re going to walk through a hazard.” Id. The inspector testified that he
gave West “roughly 15 minutes” to abate the citation, which he also described as “more than
enough time.” Tr. 53. West abated the citation in seven minutes. Tr. 102.
Next, Piko testified that he took the pictures marked as Ex. P-2 concurrently with the
issuance of the citation. Tr. 54. He testified that “it was a rainy day” on the day of the inspection,
which was relevant to the citation because “it diminishes your visibility. You’re dealing with wet
conditions on metal, on rubber, on plastic, on coal making it easier to slip and fall, and even if
you try to catch yourself because you’re dealing with wet metal.” Tr. 54.
The inspector estimated the width of the elevated walkway as approximately three and a half
feet. Tr. 56. He also noted that, while it was “not unusual” to encounter rollers placed in a
walkway, the rollers were usually “against the side, not right in the middle. This one is hanging
out in the middle mainly because that conduit takes up a lot of room.” Tr. 57. The inspector
estimated the roller was 64-inches long and weighed “at least 50 pounds, if not more.” Tr. 58.
Inspector Piko expressed that the most likely injury would occur when the miner tripped
or slipped over the various hazards previously described. In addition to tripping or slipping, the
inspector suggested that a miner could injure him or herself while attempting to grab onto
5

Though the transcript states that Inspector Piko testified that a fireboss “had to have
seen that or at least walked away,” (emphasis added), it appears to the Court that the inspector
meant “someone had to have seen that or at least walked that way,” which would be consistent
with explaining his decision to write the citation with “moderate” negligence.
6

“Firebossing” as described by Piko is when a fireboss – a supervisory position at the
mine – walks a certain area looking for fire hazards. See Tr. 49.
7

Inspector Piko stated that this statement was written on Page 10 of his inspector’s notes,
which is page 11 of the exhibit.
8

Respondent later specifies in its post-hearing brief that “GMS” refers to contractors
from GMS Mine Repair. See Respondent’s Brief at 2.

41 FMSHRC Page 360

something while stumbling. Tr. 63. From this, the inspector concluded that the injury expected
should be marked as “lost workdays or restricted duty” on the citation.
During cross-examination by the Respondent, the inspector acknowledged that he
arrived at the mine at 7:30 AM, which was a half-hour ahead of when the day shift begins.
Tr. 70. The inspector estimated that it took him and West approximately an hour to an hour and a
half to travel from the shop area to the belts. Tr. 71.
The inspector next acknowledged that a citation issued under 30 C.F.R. § 77.205(b) – as
cited in this matter – can be designated as non-significant and substantial by an inspector, and
that Inspector Piko had previously issued a non-significant and substantial citation for a violation
of the aforementioned standard on the very inspection at issue in these proceedings. Tr. 73-74.
When asked about how mine operators keep outdoor walkways clear such as the one at issue in
this matter, Inspector Piko stated that typically the operator would use a hose to spray down the
walkway with water. Tr. 77. Inspector Piko also testified that spraying the walkway down with
water would be a standard part of maintaining the walkway, and that, at the time of the year
when the inspection was conducted (late-October), it would not have been cold enough to
warrant removing the hose from the walkway area when not in use. Tr. 79. The Court surmises
from this testimony that the inspector does not believe that the mere presence of the hose in the
walkway area constitutes a violation of the standard, but the manner in which the hose is stored
might constitute a violation.
Upon further cross-examination, Inspector Piko admitted that it would not be unusual to
find coal accumulations around a slope belt, and that when spraying down a walkway, the
operator’s employees would spray in a specific direction to make sure the coal consistently went
in one direction. Tr. 83. He also admitted that, although he spoke with West and GMS
Employees about who might have placed the roller in the walkway, nobody was able to tell him
who last handled the roller or when it might have been placed in the walkway. Tr. 86-87.
The inspector also acknowledged that, at some point when walking up the walkway, a miner
would be “eye level” with the hose lying in the walkway. Tr. 90-91 and Ex. P 2. When asked by
the Court, Piko was also unable to recall how West removed the coal accumulation or the roller
in the seven minutes it took him to abate the violation. Tr. 106.
On redirect examination, Inspector Piko stated that he had conducted approximately “50
to 60” inspections between the inspection in this matter and the hearing, suggesting that it would
be difficult to remember details from any individual inspection, such as how it was abated.
Tr. 108. The inspector also indicated that, had the roller, the plastic bag, and the coal
accumulations not been present, he would not have issued a citation for a violation of 30 C.F.R.
§ 77.205(b) simply for the presence of the hose in the walkway. Tr. 110.
When re-crossed, Inspector Piko engaged in a colloquy with the Court over why Piko
described the roller as “in the middle” of the walkway. Piko acknowledged that the roller was not
exactly in the middle of the walkway, and from looking at Ex. P-2, “[t]here’s not another half of
the walkway to the right of the roller,” but rather, only a few inches. Tr. 116. Piko also stated
that, had the roller been the only object in the walkway at the time of inspection, he still would
have issued a citation for a violation of 30 C.F.R. § 77.205(b). Tr. 118. Instead, he explained that

41 FMSHRC Page 361

he referred to it as “in the middle” of the walkway because there was grating from the walkway
on both sides of the roller, and that the roller was not “off to the side.” Tr. 120.
Testimony of Consol Pennsylvania Employee Matt West
After Piko testified, the Secretary rested. The Respondent called one witness to testify:
Matt West. West is a Consol Energy employee who worked at Harvey Mine dating back to 2008.
Tr. 126. In his time with the operator, West has worked as a roof bolter, shuttle car operator, and
a mechanic/electrician. Id. At the time of the hearing, West was a mechanic/electrician, and had
a federal electrician card since 2009, which requires at least 1,000 hours of supervised work
under a qualified electrician and an 80-hour class. Tr. 127. West has worked aboveground for the
operator for the past four years. Id. His job responsibilities as an aboveground electrician are “to
repair any equipment, mobile equipment on the surface, as well as underground equipment, fan
checks, elevator checks, basically repair anything on the surface.” Tr. 128. West testified that he
escorts MSHA inspectors on a regular basis as part of his job responsibilities. Tr. 129.
On October 23, 2017, West traveled with MSHA Inspector Piko on the aboveground
inspection described in the inspector’s testimony. Tr. 130. West stated that the walkway
photographed in J-1 was used primarily by GMS employees who were responsible for
maintaining the belt. Their responsibilities included “changing rollers, hosing, basically anything
as far as keeping the belt clean.” Tr. 139. He also testified that the GMS contractors are
“supposed to maintain the walkways, as well as underneath the belt rollers.” According to West,
GMS contractors primarily maintain the walkways and belt by hosing it down to remove excess
coal accumulations. Id.
West testified that the belt is examined by a fireboss “every shift,” though West could not
definitively say whether the belt was examined on the day of the inspection. Tr. 142-143.
According to West, had the belt been examined by a fireboss on the day of the inspection, it
would have occurred on the midnight shift “between 5:00 a.m. and 8:00 a.m.” Tr. 143.
West further testified that GMS contractors do not start their day-shift until 8:00 a.m. Tr. 144.
West told the Court that, when Piko issued the citation, there was coal, a roller, and a hose
“balled up” in the walkway. Id.
When asked by Respondent’s counsel why a roller would be on the walkway, West said
that they are typically “spotted” on a production shift, or in ordinary parlance, placed near a
location on the belt where a roller needs to be replaced. Tr. 149. West stated that it is not unusual
for a roller to be placed on the walkway in the manner depicted in Ex. P-2 when a roller on the
belt is going to be changed out of the belt. Id. At the time the photo in Ex. P-2 was taken, West
testified that he had no difficulty spotting the roller in the walkway. Tr. 150. West did not
“express [his] agreement or disagreement with the inspector” as to the Citation, as he testified
that he felt “it’s my job if a citation is issued to correct the situation and make it safe at that
point.” Tr. 152. West testified that he terminated the citation by rolling the hose up and placing it
clear off to the side of the belt and picked up the roller and carried it down the steps. West did
not remove the coal accumulations identified by Piko in Ex. P-2. Tr. 154-156. Neither the coal
accumulation nor the plastic bag were required to be addressed for the citation to be terminated.

41 FMSHRC Page 362

Thus, West did two things to abate the citation; he moved the location of the water hose and the
roller.
On cross-examination, West agreed with the Secretary’s counsel that the hose on the belt
was potentially a tripping hazard. Tr. 158. West also stated that it was his understanding that
GMS contractors are responsible for maintaining the walkway on a regular basis. Tr. 163.
West acknowledged he did not remove the plastic bag identified in Ex. P-2 while abating the
citation. Tr. 164. While West could not definitively answer one way or another, West did say that
he had no reason to believe the area had not been firebossed at some point between 5:00 and 8:00
a.m., as he stated to the inspector. Tr. 165. Finally, West agreed that he had not taken notes
during the inspection, and that he had not read the portion of the citation where Piko stated that it
had been raining that day. Tr. 166, 169.
Re-direct examination of West then commenced. West testified that the hose discussed
earlier would be conspicuous to employees walking from the transfer house to the cited area. Tr.
175. He added that even were an employee to approach the walkway from the opposite direction,
the yellow color of the hose would cause it to “stand out” and be seen. Tr. 176.
When asked about the weather on the date of the inspection, West stated that even if it had been
raining on that day, it would not make the belt walkway any less safe, because the walkway had
a significant amount of expanded metal9 which aids with traction. Tr. 178.
The Court had a brief discussion with West before the Secretary’s counsel completed recross. The Court asked West if anyone from the Respondent had instructed him not to challenge
the inspector. West stated that it was not a company directive but rather personal practice to not
challenge the inspector during an inspection. On re-cross West testified that he did not feel
intimidated by Piko and that, had he wanted to address Piko’s decision to issue a citation, he
could have. Tr. 180, 181. After this exchange, the Secretary rested, and with no other questions
from Respondent’s counsel, West was excused. After ensuring that all copies of the admitted
exhibits had been identically marked by the witnesses, the hearing concluded.
Principles of Law
In all cases where an operator contests a violation, the Secretary must prove, by a
preponderance of the evidence, that a violation occurred. RAG Cumberland Res. Corp., 22
FMSHRC 1066, 1070 (Sept. 2000), citing Consolidation Coal Co., 11 FMSHRC 966, 973 (June
1989). Preponderance of the evidence simply means that the trier of fact must believe “that the
existence of a fact is more probable than its non-existence.” In re Contests of Respirable Dust
Sample Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995), aff’d 151 F.3d 1096 (D.C.
Cir. 1998), quoting Concrete Pipe and Prod. of California, Inc. v. Construction Laborers
Pension Trust for Southern California, 508 U.S. 602, 622 (1993).

9

“Expanded Metal” refers to a form of sheet metal cut into grooves or patterns and used
as a walking surface to increase traction. See, e.g. Ex. P-2.

41 FMSHRC Page 363

Significant and Substantial
In order to prove a violation is significant and substantial, the Secretary must prove by a
preponderance of the relevant evidence that there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious nature. See Cement Div.,
Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). A determination that a violation is
significant and substantial requires consideration of the particular facts surrounding the violation.
Texasgulf Inc., 10 FMSHRC 498, 501 (Apr. 1988). The Commission established a four prong
test for significant and substantial violations in Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984).
There, the Commission said 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, 6 FMSHRC at 3-4; accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir.
1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving
Mathies criteria); see also Consol Pennsylvania Coal Co., 39 FMSHRC 1893, 1899 (Oct. 2017).
With regard to the second element of the Mathies test, the Commission has elaborated that “the
second step requires a determination of 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) (“Newtown”).
With respect to the third element of the Mathies test, the Commission states that “[t]he
correct inquiry under the third element of Mathies is whether the hazard identified under element
two is reasonably likely to cause injury.” Black Beauty Coal Co., 34 FMSHRC 1733, 1742-43
n.13 (Aug. 2012). Finally, the Commission has stated that the evaluation of a significant and
substantial violation should assume continued mining operations. U.S. Steel Mining Co., 7
FMSHRC 1125, 1130 (Aug. 1985).
Negligence
An operator is negligent if it fails to meet the requisite standard of care in adhering to the
standards set forth in the Mine Act and its associated regulations. Brody Mining LLC, 37
FMSHRC 1687, 1702 (Aug. 2015). Commission Judges, when determining negligence, are
asked to consider “what actions would have been taken under the same circumstances by a
reasonably prudent person familiar with the mining industry, the relevant facts, and the
protective purpose of the regulation.” Jim Walter Resources, 36 FMSHRC 1972, 1975 (Aug.
2014). … The Commission and its judges are not required to apply the 30 C.F.R. Part 100
regulations that govern the MSHA's determinations. Newtown, 38 FMSHRC at 2048, citing
Brody at 1701-03. Therefore, the Commission's judges may consider the “totality of the
circumstances” in assessing the operator’s negligence for a given violation. Brody, at 1702;
Mach Mining, LLC v. Sec’y of Labor, 809 F.3d 1259, 1264 (D.C. Cir 2016). The Commission

41 FMSHRC Page 364

has described ordinary negligence as “inadvertent,” “thoughtless,” or “inattentive” conduct.
Emery Mining Corp., 9 FMSHRC 1997, 2001, 2004 (Dec. 1987), while high negligence is
described by the Commission as “an aggravated lack of care that is more than ordinary
negligence.” Newtown, at 2049, citing Topper Coal Co., 20 FMSHRC 344, 350 (Apr. 1998),
citing Eastern Associated Coal Corp., 13 FMSHRC 178, 187 (Feb. 1991).
The Parties’ Contentions
The Secretary contends that Citation No. 9076875 was properly designated as significant
and substantial, asserting that the violation created a discrete safety hazard of tripping/stumbling,
and that the hazard of tripping and falling was reasonably likely to cause an injury of cuts,
bruises, and broken bones, which would be of a reasonably serious in nature. Secretary’s Brief at
3, 7. Even if each individual item in the walkway may not have established a significant and
substantial violation, the Secretary argues that the confluence of objects makes the violation
significant and substantial: “[w]hile each of the hazards … on their own, may not individually
establish an S&S violation, taken together they create[d] a dangerous situation that present[ed] a
discrete hazard to safety.” Id.
In contrast, the Respondent argues that the Secretary failed to establish by a
preponderance of the evidence that the stumbling or tripping hazard was reasonably likely to
occur as a result of the violation. Respondent’s Brief at 12. The Respondent also argues that most
of the walkway was free of extraneous materials, and that the objects in the travelway were
highly visible to any miner who may have traveled the walkway. Id. at 13-14. Finally, the
Respondent argues the inspector improperly based his conclusion as to significant and substantial
on speculation and conjecture, unsupported by the actual conditions at the mine. Id. at 16-17.
Discussion
In the context of the specific facts involved in this matter, the Court will first add to its
earlier remarks about the significant and substantial designation. To put it in practical terms,
when analyzing S&S, the critical issues involve likelihood and gravity. Two important recent
decisions speaking to those characteristics under Mathies are here noted – the Fourth Circuit’s
decision in Knox Creek Coal Corp. v. Sec’y of Labor, 811 F.3d 148 (4th Cir. 2016)(“Knox
Creek”) and the Commission’s decision in Newtown.
The first prong of Mathies is straightforward. A violation must be found; without that
determination any further S&S analysis cannot proceed. As described above, the parties
stipulated to the existence of a violation. Secretary’s Brief at 3. This stipulation is sufficient for
the Secretary to meet its burden of proof as to the existence of the violation under Commission
precedent. However, the Court independently concludes that, after reviewing the photographic
evidence submitted as Ex. P-2, and the testimony of both Inspector Piko and West, that a
violation of 30 C.F.R. § 75.202(b) occurred in this case, as there were objects, located in the
travelway. 30 C.F.R. § 75.202(b) is a mandatory safety standard. The Court therefore concludes
that the first prong of the Mathies test has been satisfied by the parties’ stipulations and its own
review of the evidence.

41 FMSHRC Page 365

Speaking to the second prong of Mathies, with its requirement that there be a showing
of a “discrete safety hazard—that is, a measure of danger to safety—contributed to by the
violation, that prong is focused upon the likelihood that a given violation may cause harm.
This means that for any violation to contribute to a discrete safety hazard, the violation must be
at least somewhat likely to result in harm. Knox Creek at 162.
The Commission’s decision in Newtown tracks the Knox Creek analysis in that it follows
the Fourth Circuit’s explication of the correct S&S analysis. In Newtown, the Commission stated
that “the relevant concept tying together the second step “likelihood” analysis and third step
“gravity” analysis of Mathies is the “hazard” at issue.” Id. at 2037. The Commission elaborated
about the essential importance “for the Judge to adequately define the particular hazard to which
the violation allegedly contributes. A clear description of the hazard at issue places the analysis
of the violation’s potential harm in context, by requiring a determination of the relative
likelihood that the violation will have a meaningful, adverse effect on conditions miners will
encounter during normal mining operations. That same clearly defined hazard will also frame the
potential source of injury for purposes of determining gravity in the third step analysis.
The Commission thus defines the ‘hazard’ in terms of the prospective danger the cited safety
standard is intended to prevent.” Id. at 2038.
The Commission added “[i]f the Judge concludes, based upon the evidence, that the
violation sufficiently contributes to the hazard identified at step two, the Judge then assumes
such occurrence and determines at step three whether, based upon the particular facts
surrounding the violation, the occurrence of that hazard would be reasonably likely to result in an
injury. At step four, the Judge determines whether any resultant injury would be reasonably
likely to be reasonably serious.” Id. at 2039. “All Commissioners agree that the Judge must
analyze the likelihood of the occurrence of the hazard at step two of the Mathies test.” Id.
Although the other three elements of the Mathies test have been sufficiently proven by
the Secretary, the Court concludes that the Secretary failed to prove by a preponderance of the
evidence the second prong of the Mathies test: that there was a discrete safety hazard contributed
to by the violation. Both the Secretary and the Respondent devote a significant portion of their
post-hearing briefs to the third prong of the Mathies test.10 This emphasis is misplaced, as the
second prong is where the “particular facts surrounding the violation” are primarily considered.
Newtown Energy, 38 FMSHRC at 2038. The Secretary describes the discrete safety hazard in
this matter for fulfilling the second prong of Mathies as “tripping/stumbling.” Secretary’s Brief
at 7. However, the Court identifies the discrete safety hazard in this instance with more
particularity as the possibility that miners working will trip or stumble over the extraneous
objects in the travelway.

10

The Respondent’s brief does discuss Newtown Energy and “the interplay between the
second and third prongs,” though the Respondent does not itemize its arguments according to
each specific prong. The Secretary for his part devotes just one paragraph to the second prong,
and never cites to Newtown Energy, which discusses in detail how the facts of the violation are
incorporated into the Mathies test, and which was decided more recently than any of the cases
the Secretary cites in his significant and substantial analysis.

41 FMSHRC Page 366

The Court concludes that the Secretary failed to prove that the area was traveled
frequently enough for the violation to be reasonably likely to contribute to a discrete safety
hazard. Respondent argued post-hearing that the area was not accessed frequently. Respondent’s
Brief at 13. As just mentioned, the discrete safety hazard of tripping/stumbling is more precisely
identified as tripping and falling over the objects while miners are on the travelway. Therefore,
how often the area is accessed is relevant as to the likelihood the violation creates a discrete
safety hazard of a miner tripping/stumbling over the objects in the travelway.
The Secretary argues that the area was “regularly traversed by miners during their daily
duties.” Secretary’s Brief at 9, citing Tr. 47. While the Secretary offered evidence that the area
was regularly traversed by miners, he did not establish that the walkway was regularly traversed,
as evidenced by the fact that Inspector Piko acknowledged he did not find anybody in the area
while conducting the inspection, nor could he identify any miner who said they regularly
traversed that walkway. Tr. 100. Additionally, the inspection was conducted at approximately
10:00 AM, according to West, and neither individual could say there were any workers on the
travelway or even in the area at the time. Tr. 152. However, West also testified, and the Secretary
did not refute, that GMS workers typically began their shift at 8:00 AM. Tr. 144.
To the Court, this shows that the entire area is not frequently traveled, as neither the inspector
nor West saw any employees in the area a full two hours after the morning shift began. As a
result, the Court concludes the Secretary failed to prove that the area was traveled frequently,
which decreases the likelihood that the violation will contribute to the discrete safety hazard of
miners tripping/stumbling over objects in the travelway in the ordinary course of continued
mining operations.
Second, the Court concludes that the condition was sufficiently obvious to any individual
travelling in the area that it was not reasonably likely to create a discrete safety hazard. The roller
photographed in the citation was a 64-inches in length. The roller was not obscured by any other
object or covering, and was easy to see even during the inspection. Tr. 150.
Furthermore, the roller was a bright white color which distinctly contrasted with the color of the
metal walkway. Ex. P-2. As to the other objects in the walkway, the hose was a bright yellow
color, and was clearly visible in the inspector’s photo. Id. None of the cited objects were stacked
on top of each or otherwise obscured from plain view. From these facts, the Court concludes that
an ordinary miner would have likely spotted the potential tripping hazards while traversing the
area, and therefore the objects in the walkway were not reasonably likely to contribute to a
discrete safety hazard.
The Secretary states that the Court should not consider whether the roller, the hose, and
the other alleged obstructions in this case might have been readily observable. Secretary’s Brief
at 7, citing Eagle Nest, Inc., 14 FMSHRC 1119 (July 1992). However, Eagle Nest simply stands
for the proposition that the Court cannot assume that miners would exercise heightened or unique
caution when traveling in the area of an alleged hazard. In Eagle Nest, the judge committed error
by “resting his decision on the possibility of mitigation by the use of caution.” Id. at 1123. That
does not require the Court to assume a miner is completely unaware or ignorant of his or her
surroundings, merely that it would be inappropriate to decide a violation was not significant and
substantial based solely on the miner’s ability to exercise caution. Viewing the circumstances
surrounding the violation as a whole, including the prominence of the roller and hose, is

41 FMSHRC Page 367

ultimately relevant to the issue of whether the violation is reasonably likely to give rise to a
discrete safety hazard.
Third, the condition was not extensive enough to be reasonably likely to create a discrete
safety hazard. The objects cited were confined to one specific portion of the travelway. There
was no evidence that these hazards were extensive across the entirety of the travelway.
Furthermore, according to the text of the citation itself, the citation was written at 10:58 AM on
October 23, 2017, and terminated at 11:05 AM on October 23, 2017. See Ex. P-1, Citation No.
9076875. That means that West was able to abate the violation in seven minutes,11 which in turn
means that the violation was not so extensive as to require a significant period of time to clean
up. Additionally, the photographic evidence submitted by the parties shows that there was a
considerable portion of the cited area of the walkway that was not obstructed by the objects
referenced in the inspector’s testimony. See Tr. at 120. Therefore, the Court concludes that the
violation was not extensive enough to be reasonably likely to create a discrete safety hazard.
Finally, the Court concludes the Secretary did not prove by a preponderance of the
evidence that it was raining at the time of the violation. On this point, the Secretary did provide
testimony. See Tr. 54, Secretary’s Brief at 7. However, none of the photos in Ex. P-2 show that
the surfaces of the travelway were wet, and while the Respondent’s witness could not say
conclusively that it was or was not raining on the date of the inspection, West did say that an
outdoor inspection typically would not be done if it were raining outside. Tr. 150. West also
testified that there were no coverings over the top of the walkway, Tr. 151, meaning there should
be water on the surfaces of the walkway and the objects in Ex. P-2 if it were raining that day.
Considering all of the testimony and the exhibits, the Court concludes that the Secretary did not
prove by a preponderance of the evidence that it was raining on the date of the inspection, which
goes to the likelihood of a discrete safety hazard in the second prong of the Mathies test.
The Secretary also cites to Summit Anthracite, 29 FMSHRC 1062, 1081-1082 (Nov.
2007) (ALJ) (Summit) for the proposition that the violation in this case is significant and
substantial. Pursuant to Commission Rule 69(d), the decision of one Commission Judge is not
binding on other Commission Judges. Additionally, as the Secretary acknowledges in his own
brief, the significant and substantial inquiry depends “on the particular facts surrounding that
violation.” Secretary’s Brief at 6, citing Cement Division, National Gypsum Co., 3 FMSHRC
822, 825 (1981). The Court considers the facts in Summit sufficiently dissimilar from the facts of
this case to be distinguishable. For instance, the alleged obstructions formed the actual frame of
the generator building, meaning they would be impossible to remove. Furthermore, the Secretary
established through testimony that the generator building was accessed daily. By comparison, the
objects in this case were easily cleared from the area, and as explained above, the Secretary did
not establish that the walkway was regularly traversed. Tr. 100. Therefore, the Court concludes
11

The Secretary and Respondent focus particularly on the 64” roller and the hose,
because those two objects were the largest objects in the walkway, and because Piko terminated
the citation once West moved the roller and hose, but otherwise did not take any actions to abate
the other initially alleged hazards: specifically, the plastic bag and coal accumulations. Tr. 164.
As Respondent notes, Piko terminated the citation despite West not removing the coal
accumulations and plastic bag. Respondent’s Brief at 16.

41 FMSHRC Page 368

that Summit is not sufficiently analogous to be persuasive as to the issue of a significant and
substantial violation.
The Court agrees with the Secretary that the obstructions in the walkway contributed to
some extent to a safety hazard. That is why the Court concluded the violation occurred separate
from the parties’ stipulation, and why the Court concludes a negligence finding south of
moderate is appropriate. Newtown Energy makes it clear that merely “contributing” to a discrete
safety hazard is insufficient to prove prong two of the Mathies test. Since regulations
promulgated by the Secretary are ostensibly intended to create a safe working environment,
every violation of a safety regulation contributes in some capacity to a safety hazard.
Therefore, for the second prong of the Mathies test to have any meaning, not every violation can
create a discrete safety hazard within the meaning of Mathies. Based on all of the factors
described above, the Court ultimately decides that this particular violation was not reasonably
likely to cause the occurrence of the hazard against which 30 C.F.R. § 77.205(b) is directed
within the meaning of Newtown Energy. Therefore, the violation was not proven to be significant
and substantial.
This does not mean that virtually every violation will amount to being S&S. The Fourth
Circuit gave as an illustrative example a case where a roadway lacked berms for only a short
distance, thereby making the hazard of a vehicle falling off the edge less likely. Id. at 163, citing
Sec’y of Labor v. Black Beauty Coal Co., 34 FMSHRC 1733, 1741 n.12 (Aug. 2012). This Court
concludes that the violation in this matter is a like situation: the hose presented a slip or stumble
hazard for only a short distance; there was virtually no evidence of regular miner traffic along the
walkway; the traffic which would primarily be using the walkway would be the GMS employees
tasked with using the hose to maintain the walkway and the extraneous portion was the hose
nozzle end, which end those employees would be using to clean the walkway. Again, the Court
emphasizes that the violation was conceded here by Consol Pennsylvania – the only issue for this
part of the discussion is whether it was also S&S.
Turning to the third prong of Mathies, the Fourth Circuit in Knox Creek noted that it
has been argued by mine operators that the evidence must establish that the violation was
reasonably likely to cause injury. The Court rejected that construction, informing that the test
under the third prong is whether there is a reasonable likelihood that the hazard contributed to by
the violation will cause injury. Knox Creek, 811 F.3d at 161. By contrast, the Fourth Circuit
expressed that Mathies’ third and fourth prongs, which it noted that the Commission expected
would often be combined in a single showing, are primarily concerned with gravity—the
seriousness of the expected harm.
This means that the Secretary need not prove a reasonable likelihood that the violation
itself will cause injury. This is repetitive but bears repeating – the evidence of the likelihood of
the hazard is not relevant at prong three. Instead, the relevant hazard is to be assumed when
analyzing Mathies’ third prong. Id. at 164. Accordingly, under the third prong, one assumes the
existence of the relevant hazard. In the present case the relevant hazard is stumbling or slipping
on a travelway.

41 FMSHRC Page 369

Thus, the third prong assumes that if the hazard occurred, and regardless of the likelihood
that it would occur, whether it was reasonably likely that a reasonably serious injury would
result. Again here, that means if one were to stumble or slip on the travelway, a reasonably
serious injury would result. The testimony from the inspector was uncontested that in this matter
the injury cuts, bruises or broken bones, each of which would be a reasonably serious injury with
the result of lost workdays or restricted duty.
The fourth prong of Mathies – An injury of a reasonably serious nature
After considering the evidence, the Court also agrees with the Secretary that the hazard
would result in an injury of a reasonably serious nature were the injury to occur, satisfying the
fourth prong of the Mathies test. The parties stipulated that the expected injury would be “lost
workdays or restricted duty.” Secretary’s Brief at 3. At hearing, the inspector testified as to the
possibility of injury from slipping and falling, including broken wrists or concussions. Tr. 63.
While the Respondent asserts that the circumstances of the violation do not demonstrate a
reasonable likelihood of an injury of a reasonably serious nature, the Respondent did not address
whether the hazard of tripping and falling would create an injury of a reasonably serious nature.
The Commission has recognized on several different occasions that stumbling over obstructions
in a travelway can lead to an injury of a reasonably serious nature. See e.g., Consol Pennsylvania
Coal Co., 39 FMSHRC 1893, 1900 (Oct. 2017) (trip and fall over “uneven floor and debris”
satisfies prong four of Mathies); S&S Dredging Co., 35 FMSHRC 1979, 1982 (July 2013) (slip
and fall from steps of a loader would result in “reasonably serious injuries” under Mathies);
Buffalo Crushed Stone Inc., 19 FMSHRC 231, 238 n.9 (Feb. 1997) (slipping on a walkway
would result in “reasonably serious injuries” under Mathies). The Court therefore concludes that
the fourth prong of the Mathies test has been satisfied by the Secretary.
Summary of the Court’s determination that the evidence of record failed to establish that
the violation was “significant and substantial.”
To recap, the Court, after considering the evidence presented at hearing and the posthearing submissions of the parties, concludes that, while the Secretary established elements one,
three, and four of the Mathies test, the second Mathies element – the discrete safety hazard, that
is a measure of danger to safety – contributed to by the violation – was not established by the
preponderance of the evidence. A number of facts lead to this conclusion.
To begin, there were two sources of concern – the water hose, which in fact was used to
maintain the walkway, and the roller, placed on the walkway for the purpose of replacing a worn
roller. The walkway is maintained by contractors, identified as GMS. The inspector did not
require that either the coal spillage or the plastic bag needed to be removed for the citation to be
terminated.
Regarding the roller, as the photograph clearly demonstrates, was white and highly
visible against the contrasting metal walkway it rested upon. Further, contrary to the inspector’s
claim, the roller definitely was not in the center of the walkway. From the Secretary’s own
photos there is no disputing that the roller was to one side of the walkway and that there was

41 FMSHRC Page 370

ample room for one to traverse the walkway at the roller’s location.12 Ineluctably, that leaves but
one condition posing a genuine risk of stumbling or slipping – the water hose, and it must be
noted, only a small portion of the water hose posed such a risk. As the government photos show,
the hose is yellow and highly visible. Where the hose shares the same space on the walkway with
the roller, it is straight, running parallel to the walkway and does not present a stumbling or
slipping hazard at that location, as there is a path between the roller and the hose there.
There was, however, a small portion of the hose on the portion of the walkway where
there are two or three stairs and that confined area did present a slip or stumbling hazard. This
confined area of the hose represented the only genuine hazard among the four conditions initially
relied upon by the inspector. In fact, at the hearing, the claimed basis was reduced to only two
conditions, the water hose and the roller. However, as the Respondent has admitted that the
standard was violated, the only question is whether that limited area presented a significant and
substantial violation under Mathies.
Respondent contends that the contribution of the violation to the cause and effect must be
significant and substantial and asserts that the second step of Mathies is primarily concerned with
the likelihood of the occurrence of the hazard. In this instance that means determining the
likelihood of the occurrence of miners stumbling or slipping. Restated, a determination must be
made as to whether, based upon the particular facts surrounding the violation, there exists a
“reasonable likelihood” of the occurrence of the hazard about which the safety standard is
concerned. Accordingly, to express it plainly, the tangible hazard for determination was whether
there was a reasonable likelihood of the occurrence of miners stumbling or slipping on the
walkway at the limited location where the hose presented an issue. The Court finds, based on the
evidence of record, that the Secretary did not establish such a reasonable likelihood.
Keeping in mind that the hazard to apply to the S&S inquiry has been found to be limited
to the discrete area where the hose extended into a portion of the walkway stairs, which consisted
of two or three steps,13 primarily on the last step and a portion of the walkway after the bottom
step, the record evidence essentially14 established that only the GMS contractors would be
exposed to the hose hazard, but it is precisely those employees who use the same hose for the
purpose of cleaning the walkway. Given that, the likelihood of those employees stumbling or
slipping was minimal, not reasonably likely. Further, it was the nozzle end of the hose on the
steps, that is to say, the end of the hose that would be used by the GMS employees to maintain

12

The inspector admitted that it “would be kind of hard I think to hold just the roller” as
the basis for an S&S finding. Tr. 120-121.
13

The inspector was not definitive as to the number of risers or steps were on the stairs,
stating it was two or three.
14

The record shows that the only other miner exposed to the hazardous portion of the
hose was the fireboss. That individual, whose job includes looking for hazards, successfully
negotiated the walkway that day, including that portion of the walkway where the hose presented
an issue. Tr. 48.

41 FMSHRC Page 371

the walkway. So too, those same GMS employees are the contractors who perform belt
maintenance which includes changing out rollers.
While the Secretary could have learned from the issuing inspector about whom, if
anyone, besides the GMS employees, would use the walkway, no such possible evidence was
introduced and made a part of the record. Therefore, any use by other miners was in the realm of
speculation and accordingly cannot be part of the S&S determination.
The record also does not support the claim that it was raining on the day the citation was
issued and the inspector stated that rain was a factor which added to his S&S determination. The
exhibit photos support this finding, as did the testimony of West, who offered, without
contradiction, that typically they do not do an outdoor inspection if it’s raining.
Having failed to meet the burden of proof for prong three of Mathies, the S&S claim
cannot be affirmed by the Court.
The Negligence was less than moderate.
Regarding negligence, the Commission stated in Newtown, “[i]n analyzing an operator’s
degree of negligence, the Commission has recognized that ‘[e]ach mandatory standard … carries
with it an accompanying duty of care to avoid violations of the standard, and an operator’s
failure to meet the appropriate duty can lead to a finding of negligence if a violation of the
standard occurs.’” Id. at 2047, citing A.H. Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983).
In determining whether an operator met its duty of care, the Commission considers what
actions would have been taken under the same circumstances by a reasonably prudent person
familiar with the mining industry, the relevant facts, and the protective purpose of the regulation.
Brody Mining, LLC, 37 FMSHRC 1687, 1702 (Aug. 2015) (citations omitted); U.S. Steel Corp.,
6 FMSHRC 1908, 1910 (Aug. 1984). However, it is noted that in this case, as distinct from
Newtown, there was no evidence offered regarding managers or supervisors in high positions.
The Commission has also stated that “an ALJ ‘is not limited to an evaluation of allegedly
‘mitigating’ circumstances’ and should consider the ‘totality of the circumstances holistically.’”
Id. at 1702; see also Mach Mining, LLC v. Sec’y of Labor, 809 F.3d 1259, 1264 (D.C. Cir.
2016). And, as the Commission has repeatedly held, “the Commission and its Judges are not
bound to apply the regulations in 30 C.F.R. Part 100 that MSHA uses to calculate most proposed
penalties.” Newtown, 38 FMSHRC at 2048, citing Brody Mining, LLC, 37 FMSHRC 1687,
1701-03 (Aug. 2015). The Commission instead employs a traditional negligence analysis,
assessing negligence based on whether an operator failed to meet the requisite standard of care.
Brody, 37 FMSHRC at 1702. In doing so the Commission considers what actions a reasonably
prudent person familiar with the mining industry, the relevant facts, and the protective purpose of
the regulation, would have taken under the same circumstances. Id. Commission judges are thus
not limited to an evaluation of mitigating circumstances but may instead consider the totality of
the circumstances holistically. Id.

41 FMSHRC Page 372

Although the parties dispute the level of negligence involved in this violation, the Court
concludes that the inspector’s designation of “moderate” negligence is more appropriately
characterized as less than moderate. Though administrative law judges are not bound by the
negligence categories set forth in Part 100, it is noted that “low negligence” is defined as where,
“[t]he operator knew or should have known of the violative condition or practice, but there are
considerable mitigating circumstances.” 30 C.F.R.§ 100.3(d). In contrast, those regulations
describe “moderate negligence” as where there are mitigating circumstances. Id.
As Respondent argues, and as this Court agrees, the roller and hose were so conspicuous
on the walkway that it was unlikely that any miner traversing the area would trip and fall over
them. Respondent’s Brief at 15. The Respondent also takes note that
[h]oses are used every day to clean and this part of the workers environment.
They are trained to be aware of these conditions when traveling about. Have to
string out the hoses to be able to use them and they will be in the walkways and
on the stairs, etc. on a daily basis. … the walkway is an expanded metal gra[t]ing
which provides traction in all weather conditions. … all workers are aware of this
and use caution when traveling through there. This area is cleaned daily. Area has
handrails and toeboards.
Ex. R-1.
The Court, considering the totality of the circumstances holistically, concludes that the
negligence was less than moderate and approaching low negligence.
As Respondent notes in its post-hearing brief, all of the conditions cited were readily
visible. While the better practice would have been for the GMS employees to completely loop up
the limited portion of the hose that presented a hazard, and though it is recognized that neatness
counts, the practical result based on the record evidence was that the GMS employees were the
ones exposed to the hazard and were using the very hose to perform the walkway maintenance.
Penalty Determination
In assessing civil monetary penalties, Section 110(i) of the Act requires that the
Commission 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).

41 FMSHRC Page 373

As the Commission has noted, “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 Commission Judge’s penalty assessment is reviewed under an abuse of discretion
standard. Douglas R. Rushford Trucking, 22 FMSHRC 598, 601(May 2000); see also Knight
Hawk Coal, LLC, 38 FMSHRC 2361, 2373 (Sept. 2016).
That said, the Court recognizes that there are two important considerations that must be
evaluated; the Secretary’s burden to provide sufficient evidence to support the proposed
assessment; and the Court’s obligation to explain the basis for any substantial divergence from
the proposed amount. The Commission has noted that:
[The] Secretary [ ] does bear the ‘burden’ before the Commission of providing
evidence sufficient in the Judge’s discretionary opinion to support the proposed
assessment under the penalty criteria [and that] [w]hen a violation is specially
assessed that obligation may be considerable. [On the other hand] the Secretary’s
proposed penalty cannot be glided over, as the Commission also stated, ‘Judges
must explain any substantial divergence between the penalty proposed by MSHA
and the penalty assessed by the Judge. … 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.
The American Coal Co., 38 FMSHRC 1987, 1993-1994 (Aug. 2016), citing Sellersburg Stone
Co., 5 FMSHRC 287, 293 (Mar. 1983), aff’d, 57 736 F.2d 1147 (7th Cir. 1984).
Section 110(i) Penalty Factors As Applied to This Case
History of Previous Violations
As the citation indicated, 30 C.F.R. § 77.205(b) was cited three times in two years at this
mine. However, only one of those citations was to the operator, with the other two citations cited
to contractors. Neither party contested the existence of the prior violations of this standard.
The Court therefore concludes that the history of previous violations of this sort at this mine is
minimal.
Size of the Business
The parties stipulated that the Mine Data Retrieval System (MDRS) maintained by the
Secretary accurately sets forth the size of the Respondent in production tons worked this year,
the protection tons and hours worked at this mine specifically, the total number of assessed
violations for the time period listed, and the total number of inspection days during that time
period. Secretary’s Brief at 3. The mine extracts 2,971,179 tons of coal per year, while the
operator extracts 24,679,089 total tons of coal per year. Ex. A, Pet. for a Civil Penalty at 10.

41 FMSHRC Page 374

Negligence
For the reasons described above, the Secretary’s initial determination of “moderate”
negligence is appropriate, and will be affirmed by this Court.
Operator’s Ability to Remain in Business
The Secretary stated that the assessment of a civil penalty of $625.00 will not affect the
operator’s ability to remain in business. Secretary’s Brief at 11. The Respondent did not contest
this assertion in its own post-hearing briefs. Therefore, the Court concludes, in conjunction with
the size of the mine and its annual production, that a penalty of $625.00 or less would not affect
the Respondent’s ability to remain in business.
Gravity of the Violation
For the reasons described above, the Court has determined that the gravity of the citation was
over-evaluated; the Court concludes that the likelihood of injury was “unlikely” and was not
significant and substantial, for several reasons: it took only seven minutes to abate the cited
condition, the condition was obvious to any individual who might be walking through the area,
the condition was not extensive, and the walking surfaces were not wet at the time of the
inspection.
Good Faith Abatement
The Secretary’s petition for assessment of civil penalty acknowledged Respondent’s good
faith abatement of the violation. As the citation was terminated seven minutes after issuance, the
Court agrees that the Respondent abated the violative condition in good faith.
Analysis of Section 110(i) Penalty Factors
Most important of the six factors outlined in Section 110(i) to the ultimate penalty
determination in this case was the gravity of the violation. Since the likelihood of injury and the
significant and substantial designation as written in the citation were not sufficiently proved by
the Secretary at hearing, the penalty should be adjusted downward accordingly. Furthermore, the
fact that West immediately set out to abate the violation after it was cited, and the fact that he
was successful in doing so less than ten minutes after the citation was issued, counsels in favor of
reducing the penalty from the original $625.00 for good faith abatement, in addition to the
reduction for gravity.
Respondent calculates that, without the significant and substantial designation and with
the likelihood of injury modified to “unlikely,” the penalty as calculated by 30 C.F.R. § 100.3
would be $129.00. Respondent’s Brief at 22. The Court’s $200.00 penalty reflects the Court’s
conclusion that, although the Respondent’s conduct merely rises to the level of ordinary
negligence, characterized as less than moderate, and approaching low negligence, in the future
Respondent should be more diligent as to the requirements of the standard.

41 FMSHRC Page 375

The Court ultimately determines that the 110(i) factors concerning the size of the
operator, the history of previous violations, and the operator’s ability to remain in business do
not substantially alter the Court’s determination of an appropriate penalty, especially given the
already significant reductions in the penalty amount as a result of the gravity, negligence, and
good faith abatement considerations.
Conclusion
Taking into account all of the preceding findings and observations, the Court concludes
that the violation occurred, presented an “unlikely” risk of an expected injury of lost workdays or
restricted duty. The Court also finds that one person would be affected by the violation, the
violation was not significant and substantial, and that the negligence of the operator was less than
moderate, approaching low negligence. In light of these considerations, the agreed-upon
stipulations as to the violation and the injury expected, and the inherent power of Commission
Judges to independently assess penalties based on their reasoned judgment of all the facts, the
Court finds that the non S&S determination and the less than moderate negligence determination
independently support the Court’s imposition of a civil penalty of $200.00 for this violation.
ORDER
It is hereby ORDERED that Citation No. 9076875 be MODIFIED to change the
likelihood of injury from “reasonably likely” to “unlikely,” and to reflect a non-significant and
substantial violation and less than moderate negligence. Respondent is ORDERED to pay a civil
penalty in the total amount of $200.00 within 30 days of this decision.15

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

Distribution:
Maria Del Pilar Castillo, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis
Center, Suite 630E, 170 S. Independence Mall West, Philadelphia, PA 19106
Patrick Wayne Dennison, Esq., Fisher Phillips LLP, One Oxford Centre, 301 Grant Street, Suite
4300, Pittsburgh, PA 15219
Kenneth J. Polka, U.S. Department of Labor, MSHA, 631 Excel Drive, Suite 100, Mt. Pleasant,
PA 15666
15

Payment is to be sent to: Mine Safety and Health Administration, U.S. Department of
Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.

41 FMSHRC Page 376

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004

May 22, 2019
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDINGS
Docket No. WEVA 2015-0074
A.C. No. 46-01968-361667
Docket No. WEVA 2015-0425
A.C. No. 46-01968-371547

v.

Docket No. WEVA 2015-0473
A.C. No. 46-01968-373553
THE MONONGALIA COUNTY COAL
COMPANY, successor to
CONSOLIDATION COAL COMPANY,
Respondent.

Mine: Monongalia County Mine

ORDER DENYING SECRETARY’S MOTION
TO CONTINUE STAY
AND
ORDER LIFTING STAY
Before:

Judge Feldman

Before me is the Secretary’s Motion to Continue the Stay in the captioned proceedings.
The captioned matters concern the term “repeated” as contemplated by the flagrant provisions of
section 110(b)(2) of Mine Safety and Health Act of 1977, as amended by the Mine Improvement
and New Emergency Response Act of 2006 (the “Mine Act”), 30 U.S.C §820(b)(2). Section
110(b)(2) provides, in pertinent part:
[T]he term “flagrant” with respect to a violation means a [1]
reckless or repeated failure to make reasonable efforts to eliminate
a [2] known [3] violation of a mandatory health or safety standard
that [4] substantially and proximately caused, or reasonably could
have been expected to cause, [5] death or serious bodily injury.
30 U.S.C § 820(b)(2) (emphasis added).

41 FMSHRC Page 377

The Commission has recognized alternative interpretations of the term “repeated” in
section 110(b)(2) for accumulation violations of section 75.400, one “narrow” and one “broad.” 1
Sec’y of Labor v. The American Coal Co., 38 FMSHRC 2062, 2064-65 (Aug. 2016) (“American
Coal”). Under the narrow interpretation discussed in American Coal, an alleged flagrant
violation can be characterized as “repeated” if the duration of the accumulation violation,
without regard to a history of violations, is sufficient to satisfy the “repeated” statutory criterion.
Id. at 2065. Thus, the Commission’s narrow interpretation of the term “repeated” concerns a
discrete ongoing accumulation violation. Id. In contrast, the Commission articulated that under
its broad approach an alleged flagrant violation of section 75.400 can be characterized as
“repeated” based on a recurrent-type violation analysis, i.e., analysis of a history of several
discrete yet similar violations. Id. at 2064.
The captioned proceedings are related to an alleged “repeated” flagrant accumulation
violation of section 75.400, cited in Order No. 8059209 in Docket No. WEVA 2015-0632, based
on both the narrow and broad approach. See Secretary of Labor v. Monongalia County Coal Co.,
40 FMSHRC 1234 (July 2018) (ALJ) (“Monongalia”). The captioned matters concern three
alleged “predicate” accumulation violations that the Secretary relies on to support the “repeated”
characterization under the broad approach for the alleged flagrant accumulation violation that is
the subject of Order No. 8059209 in Monongalia.
Monongalia and the three captioned proceedings were consolidated and stayed on
May 12, 2016, pending a final decision in Secretary of Labor v. Oak Grove Resources,
38 FMSHRC 957 (May 2016) (ALJ) (“Oak Grove”), which concerned an alleged “repeated”
flagrant accumulation violation. Unpublished Consolidation Order and Stay Order (May 2016)
(ALJ). The flagrant designation was deleted by an interlocutory order on June 1, 2015, as Oak
Grove stood for the proposition that violative accumulations that cannot be reasonably expected
to proximately cause serious bodily injury or death cannot be elevated to flagrant status simply
because the violations are characterized as “repeated” based on a history of violations.2 See Oak
Grove, 38 FMSHRC 957, 960; Order Deleting Flagrant Designation, 37 FMSHRC 1311 (ALJ).
Oak Grove became final after neither the interlocutory order nor the decision after hearing was
appealed. Consequently, the stay in Monongalia was lifted on June 14, 2016. Severance Order
and Prehearing Order, 38 FMSHRC 1573 (ALJ). However, the stay of the captioned “predicate
proceedings” remained in effect. Id.
1

Section 75.400 provides:
Coal dust, including float coal dust deposited on rock-dusted
surfaces, and other combustible materials, shall be cleaned up and
not be permitted to accumulate in active workings, or on dieselpowered and electrical equipment therein.

30 C.F.R. § 75.400.
2

The May 3, 2016, decision in Oak Grove preceded the Commission’s August 30, 2016,
American Coal discussion of alternative broad and narrow analyses for demonstrating the
“repeated” element of a flagrant violation.

41 FMSHRC Page 378

A hearing in Monongalia was conducted in March 2017. Despite the Secretary’s
alternative reliance on a broad approach, the scope of the hearing in Monongalia was limited to
whether the violation in Order No. 8059209 was properly characterized as “repeated” under a
narrow analysis, as it was reasonably likely that the Secretary could demonstrate a prima facie
case that the cited accumulations existed for several shifts.3 Order, 39 FMSHRC 423, 425
(Feb. 2017) (ALJ). Although the decision found that the violation was “repeated” under the
narrow approach, the flagrant designation in Monongalia was deleted because the evidence
failed to establish that the cited accumulations could be reasonably expected to proximately
cause serious bodily injury or death, as required by the statute. 40 FMSHRC at 1257. The
Secretary’s appeal of Monongalia is currently before the Commission. Unpublished Direction for
Review (Sept. 6 2018).4
Following the July 2018, initial decision on the merits in Monongalia, conference calls
were conducted on October 2, and December 4, 2018, to determine if the stay of the captioned
proceedings should be lifted as the “repeated” element had been demonstrated under a narrow
analysis. Despite my reservations, the parties expressed their desire to continue the stay pending
the resolution of the Monongalia appeal. Consequently, the Secretary filed a motion in support of
the continuation of the stay on November 6, 2018 and a supplemental brief in support of the stay
on January 16, 2019. Given its unopposed nature, a ruling on the parties’ request to continue the
stay has been held in abeyance.
The Secretary’s motion to continue the stay pending the Commission’s review of
Monongalia is based on the mistaken belief that the Secretary’s predicate theory was rejected in
Monongalia at the trial level. See Sec’y’s Mot. to Continue the Stay. at 2; see also n. 4, infra. As
noted, the evidentiary requirements for a broad analysis are not before the Commission as
Monongalia explicitly noted that this question was moot as a consequence of a “repeated”
finding under a narrow analysis. 40 FMSHRC at 1258.
It is true that I considered the Secretary’s predicate theory to be legally flawed based on a
number of concerns. Id. at 1258-60. However, the discussion was dicta in view of the
Commission’s prior expression of interest in considering the “Judge’s input with respect to
fashioning the criteria for a ‘broad’ analysis of the ‘repeated’ provision as it applies to
accumulation violations.” Id. (citing Secretary of Labor v. The American Coal Co., 38 FMSHRC
2062, 2082 (Aug. 2016)).

3

Order No. 8059209 notes that the subject accumulations were extensive in nature and
contained footprints in areas traveled by belt examiners three times each day. Monongalia, 40
FMSHRC at 1241.
4

The Commission’s unpublished September 6, 2018, Direction for Review denied
Monongalia’s Petition for Discretionary Review (“PDR”). Although the Commission granted the
Secretary’s Amended PDR concerning the deletion of the flagrant designation, the deletion was
not based on the Secretary’s failure to demonstrate the “repeated” element. Consequently,
satisfaction of the “repeated” element is not before the Commission on review in Monongalia.

41 FMSHRC Page 379

While I am reticent to deny an unopposed motion to stay, there is no basis for further
delaying disposition of the 104(d) orders that are the subjects of the captioned matters. The
Secretary has failed to demonstrate that he will be prejudiced by lifting the stay in these civil
penalty proceedings. Moreover, avoiding further delay of the disposition of the captioned cases
may expedite future proceedings in the unlikely event that a broad “repeated” analysis becomes
relevant.
With the benefit of hindsight, I regret not having lifted the lengthy stay in the captioned
proceedings. As previously noted, it was clear that the Secretary could present a prima facie case
that the cited accumulations in Order No. 8059209 in Monongalia satisfied the “repeated”
element under a narrow approach. See n. 3, supra. Thus, to facilitate the disposition of
Monongalia, I saw no need to take evidence with respect to the yet-to-be-decided criteria for
establishing a “repeated” accumulation violation of section 75.400 under a broad approach.
However, I did not foresee the Secretary’s insistence in continuing to advance his predicate
theory in furtherance of demonstrating the “repeated” element under a broad analysis.
It has been more than 12 years since the flagrant provisions have been added to the Mine
Act. During this period, the Secretary, the Commission, and Commission judges have failed to
fashion criteria for satisfaction of the “repeated” element under an alternative broad approach for
section 75.400 accumulation violations. With the exception of violations caused by spillage,
accumulation violations are “repeated” by nature in that they develop and remain unabated for
several shifts. Consequently, continued efforts to identify the criteria necessary for
demonstrating the “repeated” element under a broad approach may be a search for a solution to a
non-existent problem. As evidenced by the lengthy stay in these proceedings brought about by
the unsuccessful efforts to identify the requisite criteria for demonstrating “repeated” under a
broad analysis, perhaps the time has come to reconsider the propriety of continuing this
longstanding uncertainty.
ORDER
In view of the above, the Secretary’s request to continue the stay IS DENIED.
Consequently, IT IS ORDERED the stay in the captioned matters IS HEREBY LIFTED. A
hearing date in the captioned proceedings will be specified in a subsequent order.

/s/ Jerold Feldman
Jerold Feldman
Administrative Law Judge

41 FMSHRC Page 380

Distribution:
Bertha M. Astorga, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center, Suite 630
East, 170 S. Independence Mall West, Philadelphia, PA 19106 astorga.bertha.m@dol.gov
Jason W. Hardin, Esq., Fabian VanCott, 215 South State Street, Suite 1200, Salt Lake City, UT 841112323 jhardin@fabianvancott.com
Artemis D. Vamianakis, Esq., Fabian VanCott, 215 South State Street, Suite 1200, Salt Lake
City, UT 84111-2323 avamianakis@fabianvancott.com
/nm

41 FMSHRC Page 381

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

May 24, 2019
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. LAKE 2018-0340
A.C. No. 20-02529-468328

v.
AMERICAN AGGREGATES OF
MICHIGAN, INC.
Respondent

Mine: Ray Road Plant

ORDER ACCEPTING APPEARANCE, REJECTING SETTLEMENT,
RECUSING UNDERSIGNED, REQUESTING REASSIGNMENT,
AND CERTIFYING CASE FOR INTERLOCUTORY REVIEW
Before:

Judge McCarthy

This case is before the undersigned upon a Petition for the Assessment of Civil Penalty
under section 105(d) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C.
§ 815(d). The Secretary of Labor (“Secretary”) submitted a motion to approve settlement of this
matter. For the reasons that follow, the undersigned declines to approve the proposed settlement
agreement and requests that this matter be reassigned to another judge for hearing on the merits.
Furthermore, the undersigned certifies, pursuant to Commission Procedural Rule 76, 29 C.F.R. §
2700.76, that this interlocutory ruling involves a controlling question of law and that immediate
review will materially advance the final disposition of the proceeding.
I. STATEMENT OF THE CASE
This matter involves a single alleged violation, Order 8952500 (“Order”). The Order was
issued on May 17, 2018 pursuant to Section 104(g)(1) of the Mine Act. The Order alleges that:
[A miner] – Drill Operator, had not received the MSHA-required 4-hour new
miner training prior to beginning work at the mine. [The miner] had no previous
mining experience. The mine operator was aware of the Part 46 training
requirements. The mine operator must withdraw [the miner] from the mine until

41 FMSHRC Page 382

he receives the required training. The Federal Mine Safety and Health Act of
1977 states that an untrained miner is a hazard to himself and to others.
Pet. for Civil Penalty at 11. The inspector marked the likelihood of injury as reasonably likely
and the expected injury or illness as fatal. The inspector listed the violation as significant and
substantial (“S&S”), with one person affected. The inspector recorded the level of negligence as
high. The Order was terminated on May 21, 2018, after the miner received requisite safety
training.
On February 14, 2019, the Secretary submitted a motion to approve settlement
(“Motion”). The Secretary sought to reduce the proposed assessment from $2,007.00 to $132.00.
The Secretary also sought to modify the likelihood of injury from reasonably likely to unlikely,
the severity of injury from fatal to lost workdays or restricted duty, and the level of negligence
from high to moderate, and to remove the S&S designation. Motion at 2. In support of these
modifications, the Secretary offered the following:
Respondent argued that the “reasonably likely,” “fatal” and “high” negligence
designations are not supported by the facts. Respondent asserts that [the miner]
was not a driller but was a Driller’s Helper. Respondent contends that [the miner]
had received, at the time the order was issued, 19.5 hours of OSHA related
classroom training, had received 4 hours of New Miner Training and had received
on-the-job training working directly with its driller. Respondent concedes that on
the day of the inspection [the miner] had not received training on all seven subject
required by 30 C.F.R. 46.5 including 46.5(b)(4) 46.5(b)(5), 46.5(b)(6) and
46.5(b)(7), and the MSHA training that [the miner] had received had not been
properly documented. Respondent stated that although [the miner] had no
previous mining experience, he did have approximately one month of experience
working with its driller as a Driller’s Helper taking core samples at a non-mine
property being considered for purchased [sic] for future mining. Respondent
avows that [the miner]’s work off mine property was the exact same work
conducted with the same drill rig the day the withdrawal order was issued. . . .
Applying the penalty tables found at 30 C.F.R. § 100.3, these modifications result
in a revised assessment of $132.00.
Id. at 3.
After reviewing the proffered basis for modifying the Order, the undersigned requested
clarification on several portions of the motion that were unclear or unconvincing. Specifically,
the undersigned stated:
1. The judge is also uncertain how the parties determined the violation was not
significant and substantial given Respondent admits the miner did not have
training on “[i]nstruction on the health and safety aspects of the tasks to be
assigned” (30 C.F.R. § 46.5(b)(4)) and the “rules and procedures for reporting
hazards” (30 C.F.R. § 46.5(b)(7)), such training is a mandatory safety standard
under Section 115 of the Mine Act, Section 104(g)(1) expressly requires a

41 FMSHRC Page 383

declaration that the miner is “a hazard to himself and to others,” and the
Respondent acknowledges that the injury would still potentially result in lost
workdays or restricted duty.
2. The judge is concerned about the Respondent’s contention that it was “unaware
that the training the miner received” was not sufficient to satisfy 30 C.F.R.
§ 46.5(b) given that the operator knew or should have known what training was
required under 30 C.F.R. § 46.5 before the miner could begin work,
acknowledged that it failed to properly document the training it asserts it gave
him, and conceded that the miner had not been trained on 30 C.F.R § 46.5(b)(4)(7) when the Order was issued.
3. The judge is concerned about the size of the reduction in penalty that
accompanies the modifications to the Order, especially in light of the concerns
outlined above. The reduction ends up being approximately 93-94% of the
original proposed assessment amount of $2,007.00.
E-mail from Brendan Porter, Attorney Advisor to Administrative Law Judge Thomas P.
McCarthy, to MSHA Conference and Litigation Representative George F. Schorr (Feb. 14, 2019,
16:23 PM EST). Mr. Schorr responded to the requests for further clarification, as follows:
The Secretary respectfully relies upon the settlement motion as it was filed. The
Secretary relies on the requirements of settlement language as set out in the recent
decision from the FMSHRC in American Coal Co., LAKE 2011-13, FMSHRC
August 2, 2018. The Secretary asserts that the settlement motion includes a
description of the “fact [sic] on which the parties have agreed to disagree.”
American Coal, page 9. Further, the settlement motion demonstrates “the
proposed penalty reduction is fair, reasonable, appropriate under the facts, and
protects the public interest.” Id.
E-mail from George F. Schorr, MSHA Conference and Litigation Representative, to Brendan
Porter (Feb. 21, 2019, 17:17 PM EST) (italics added). On February 28, 2019, the undersigned
offered the parties one last opportunity to address the substantive concerns outlined above. Email from Judge Thomas P. McCarthy to the parties (Feb. 28, 2019, 2:17 PM EST) (italics
added). The Secretary’s representative again demurred and stated that “[t]he Secretary
respectfully requests the judge reduce to an Order any requests for additional information or
objection to the settlement.” E-mail from George F. Schorr, MSHA Conference and Litigation
Representative, to Judge Thomas P. McCarthy (Mar. 1, 2019 9:12 AM EST).
II. LEGAL PRINCIPLES AND ANALYSIS
Section 110(k) of the Mine Act provides that “[n]o proposed penalty which has been
contested before the Commission under section 105(a) shall be compromised, mitigated, or
settled except with the approval of the Commission.” 30 U.S.C. Sec. 820 (k). The legislative
history describes the Congressional rationale in great detail. The Senate Report states that the
“compromising of the amounts of penalties actually paid” has reduced “the effectiveness of the

41 FMSHRC Page 384

civil penalty as an enforcement tool.” S. Rep. No. 95-181, at 44 (1977), reprinted in Senate
Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal Mine Safety and
Health Act of 1977, at 632 (1978) (“Legis. Hist.”). The Committee explained that its
investigation of the penalty collection system under the Federal Coal Mine Safety and Health Act
of 1969 revealed “that to a great extent the compromising of assessed penalties [did] not come
under public scrutiny,” and that “[n]egotiations between operators and Conference Officers of
MESA [MSHA's predecessor] are not on the record.” Id. To remedy this problem, Congress
explained that “[b]y imposing [the] requirements” of section 110(k), it “intend[ed] to assure that
the abuses involved in the unwarranted lowering of penalties as a result of off-the-record
negotiations are avoided.” Id. (emphasis added). Congress expressed its “inten[t] that the
Commission and the Courts will assure the public interest is adequately protected before any
reduction in penalties.” Id. This “legislative history cannot be ignored simply because of the
passage of time or because it may be convenient for the Secretary to do so.” The American Coal
Co., 38 FMSHRC 1972, 1976 n.5 (Aug. 2016) (American Coal I).
Based on the language of section 110(k) and its legislative history, the Commission
reaffirmed in Black Beauty that Congress authorized the Commission to approve the settlement
of contested penalties in section 110(k) “[i]n order to ensure penalties serve as an effective
enforcement tool, prevent abuse, and preserve the public interest.” 34 FMSHRC at 1862
(citations omitted). To effectuate this Congressional mandate, the Commission in American
Coal I held that the Commission and its Judges must “consider whether the settlement of a
proposed penalty is fair, reasonable, appropriate under the facts, and protects the public interest.”
38 FMSHRC at 1976.
The Commission has repeatedly observed that a Judge’s “front line oversight of the
settlement process is an adjudicative function that necessarily involves wide discretion.”
Shemwell v. Armstrong Coal Co., 36 FMSHRC 1097, 1101 (May 2014) (citations omitted). As
the Commission also observed in American Coal II:
Judges must have sufficient information to determine if a settlement of
a penalty is fair, reasonable, appropriate under the facts, and protects
the public interest. Moreover, such information permits a Judge to
fulfill the duty of articulating reasons for the approval [or rejection] so
that the process of compromising penalty amounts is transparent, as
Congress intended. A Judge who properly determines that a settlement
motion lacks sufficient information may permissibly request further
facts from the parties. (footnote 6 omitted) See Black Beauty, 34
FMSHRC at 1863.
American Coal Co., 40 FMSHRC 983, 991 (Aug. 2018) (American Coal II).1
1

The Commission ruled in footnote 6 that “some Commission Judges have a practice of
seeking additional information from parties when evaluating a proposed settlement, and that this
procedure works effectively. Oral Arg. Tr. 21-22, 31-32, 34-35, 50, 75-76. If a party believes
that a Judge has overstepped his or her authority or otherwise committed an abuse of discretion
(continued…)

41 FMSHRC Page 385

Applying these principles, I find that the proposed settlement is not reasonable,
appropriate under the proffered facts, or in furtherance of the public interest. The Secretary
seeks to reduce the proposed penalty assessment from $2,007.00 to $132.00. This amounts to an
approximate 93.5% reduction in the penalty amount. While a significant reduction in the
proposed assessment amount is not impermissible as part of a proposed settlement agreement,
the steep reduction invites closer scrutiny of the facts presented to ensure that the settlement is
“fair, reasonable, appropriate under the facts, and in the public interest,” consistent with
Commission precedent.
As a threshold matter, the admitted facts do not support removal of the S&S designation.
The Mine Act describes an S&S violation as one “of such nature as could significantly and
substantially contribute to the cause and effect of a coal or other mine safety or health hazard.”
30 U.S.C. § 814(d)(1). A violation is S&S if, “based on 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 Div., Nat’l Gypsum Co., 3 FMSHRC
822, 825 (Apr. 1981). The Commission has explained that the “reasonable likelihood” language
in National Gypsum does not require the violation itself to create a reasonable likelihood of
injury; a showing that the hazard contributed to by the violation can be reasonably likely to result
in an injury is sufficient to affirm an S&S designation. Musser Engineering, Inc., 32 FMSHRC
1257 (Oct. 2010).
To establish an S&S violation, the Secretary 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;2 (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

1

(…continued)
in requesting such facts, a party may appeal that matter to the Commission on an interlocutory
basis. See Solar Sources, Inc., Unpublished Order dated May 16, 2018 (granting interlocutory
review of 39 FMSHRC 2052 (Nov. 2017) (ALJ)).” American Coal II, 40 FMSHRC at 991 n.6.
2

Step two of the Mathies analysis focuses on “the extent to which the violation
contributes to a particular hazard.” The Commission has recently clarified that this step is
“primarily concerned with likelihood of the occurrence of the hazard against which a mandatory
safety standard is directed.” Newtown Energy, Inc., 38 FMSHRC 2033, 2037 (Aug.2016) (citing
Knox Creek Coal Corp. v. Sec’y of Labor, 811 F.3d 148, 163 (4th Cir. 2016)). Step two of the
Mathies test involves a two-part analysis: 1) identification of the hazard created by the violation
of the safety standard; and 2) “a determination of whether, based on the particular facts
surrounding the violation, there exists a reasonable likelihood of occurrence of the hazard against
which the mandatory safety standard is directed.” Newtown Energy, 38 FMSHRC at 2038.

41 FMSHRC Page 386

reasonably serious nature. Mathies Coal Co., 6 FMSHRC 1, 3-4. (Jan. 1984).3 The S&S
determination should be made assuming “continued normal mining operations.” U.S. Steel
Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985). This evaluation also considers the length of
time that the violative condition existed prior to the citation and the time that it would have
existed if normal mining operations had continued, without any assumptions regarding
abatement. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel Mining Co., Inc.,
6 FMSHRC 1573, 1574 (July 1984).4
Section 104(g)(1) of the Mine Act states that, if a representative of the Secretary finds a
miner “who has not received the requisite safety training as determined under section 115 of this
Act [30 U.S.C. § 825], the Secretary or an authorized representative shall issue an order under
this section which declares such miner to be a hazard to himself and to others, and requiring that
such miner be immediately withdrawn from the coal or other mine, and be prohibited from
entering such mine until an authorized representative of the Secretary determines that such miner
has received the training required by section 115 of this Act.” 30 U.S.C. § 814(g)(1) (emphasis
added).
In the proffered factual basis for settlement, both parties acknowledge that the miner did
not have all of the mandatory safety training. The parties agree that on the day of the inspection,
the miner had not received “[i]nstruction on the health and safety aspects of the tasks to be
assigned” (30 C.F.R. § 46.5(b)(4)) and the “rules and procedures for reporting hazards.” (30
C.F.R. § 46.5(b)(7)). Such training is a mandatory safety standard under Section 115 of the
Mine Act. Section 104(g)(1) declares that such an untrained miner is “a hazard to himself and
to others.” The parties agree that the injury expected to result from the untrained miner
violation is likely to result in lost workdays or restricted duty. Given these undisputed facts and
principles of law, the Secretary can offer no persuasive explanation for why the violation should
be modified by removing the S&S designation, other than the fact that is just more convenient to

3

The Secretary, mine operators, and the federal appellate courts have accepted the
Mathies test as authoritative. See Knox Creek Coal Corp., 811 F.3d at 160 (noting federal
appellate courts’ uniform adoption of Mathies test and parties’ recognition of authority of the
test); Mach Mining, LLC v. Sec’y of Labor, 809 F.3d 1259, 1267 (D.C. Cir. 2016) (applying
Mathies criteria); Buck Creek Coal, Inc. v. Fed. Mine Safety & Health Admin., 52 F.3d 133, 135
(7th Cir. 1995) (recognizing wide acceptance of Mathies criteria); Austin Power, Inc. v. Sec’y of
Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving use of Mathies criteria).
4

See also Black Beauty Coal Co., 34 FMSHRC 1733, 1740 (Aug. 2012), aff’d sub nom.
Peabody Midwest Mining, LLC v. FMSHRC, 762 F.3d 611 (7th Cir. 2014); Rushton Mining Co.,
11 FMSHRC 1432, 1435 (Aug. 1989); Knox Creek, 811 F.3d at 165-66 (upholding
Commission’s rejection of “snapshot” approach to evaluating S&S for accumulations violation);
Mach Mining, 809 F.3d at 1267-68 (discussing the operative timeframe for violations in the
context of S&S analyses).

41 FMSHRC Page 387

make this violation go away.5 Accordingly, I conclude that the Secretary failed to adequately
explain why the modifications to the Order are “appropriate under the facts” within the meaning
of American Coal I.
The Secretary argues that he is merely required to present facts upon which the parties
have “agreed to disagree” and that the facts need not raise a “legitimate disagreement that can
only be resolved by a hearing.” American Coal II, 40 FMSHRC at 991. This is not a situation,
however, where the parties have agreed to disagree. Rather, the undersigned’s review of the
proffered settlement agreement indicates that the parties have agreed to fundamental, undisputed
facts that would establish an S&S violation: the miner had not received the required mandatory
training, rendering him “a hazard to himself and to others” according to the express language in
the Mine Act, and there is a reasonable likelihood that the untrained-miner hazard contributed to
by the violation will result in an injury that would result in lost workdays or restricted duty.6
Contrary to the Secretary, American Coal II does not dictate that the undersigned approve
this settlement agreement. In fact, that decision counsels toward the opposite conclusion in
fulfillment of my statutory obligations to review settlement agreements to ensure consistency
with Commission precedent and the purposes of the Act. In American Coal II, the parties agreed
to a 30% reduction in the overall proposed assessment in the penalty docket without changing
the paper text of any the citations. Id. at 989. The Commission agreed with the parties that “the
fact that the proposed settlement preserves all of the citations as written could assist the
Secretary in future enforcement efforts against this operator by ensuring that the paper record
reflects the Secretary’s views regarding gravity and negligence stated in the citations.” Id.
In the present settlement agreement, by contrast, the parties seek to modify the likelihood
of occurrence, the severity of injury, the S&S designation, and the negligence of the underlying
Order. In addition, the parties seek to reduce the proposed penalty by well-nigh 94%. Almost
any future enforcement benefit that the Secretary might derive from the Order, as written, has
been almost completely eliminated by the proposed extensive modifications to the paper text of

5

It should be noted that this Order neither challenges the Secretary’s discretion to
initially designate a violation as S&S nor raises the issue of whether a judge on his own initiative
can designate a violation as S&S. Cf. Mechanicsville Concrete, Inc., 18 FMSHRC 877 (June
1996). Rather, the question is whether a Commission judge must accept—once the Secretary has
already designated a violation as S&S—a settlement of an S&S violation that is not fair,
reasonable, or appropriate under the facts, and does not protect the public interest.
6

Based on this determination, the undersigned finds it appropriate to recuse himself from
any hearing on the merits in this matter, and requests that the Acting Chief Judge reassign this
matter to another judge for hearing.

41 FMSHRC Page 388

the Order.7 While there is likely still some marginal enforcement benefit to the modified Order,
it is nowhere near as substantive as the terms of the settlement in American Coal II, and nowhere
near as substantive as the terms of the original Order.
Beyond failing to be fair, reasonable, and appropriate under the facts, the Motion fails to
protect the public interest. The Mine Act was passed in 1977 in response to several accidents
that caused the deaths of dozens of miners. As noted, Congress in particular was concerned with
what it viewed as a pervasive practice of erstwhile regulators within the Department of the
Interior, who surreptitiously sold out the public interest to protect our nation’s miners based on a
cozy relationship with mine operators. Specifically, the Senate Report stated that the
“compromising of the amounts of penalties actually paid” had reduced “the effectiveness of the
civil penalty as an enforcement tool.” S. Rep. No. 95-181, at 44 (1977), reprinted in Senate
Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal Mine Safety and
Health Act of 1971, at 632. The facts here elicit concerns that this is the same type of convenient
or misguided sellout that Congress sought to guard against when lodging final approval for
settlement agreements in contested cases with the Commission.
The Secretary asks that I approve a 93.5% penalty reduction, as well as modifications to
nearly every portion of the original Order issued for violation of a mandatory training standard,
enshrined in the text of the Mine Act, on the basis of admitted facts that bear no interpretation
7

The Secretary includes the following language in every motion to approve settlement
that he submits to the Commission:
In reaching this settlement, the Secretary has evaluated the value of the
compromise, the likelihood of obtaining a better settlement, and the prospects of
coming out better or worse after a trial. In deciding that such a compromise is
appropriate, the Secretary has not given weight to the costs of going to trial as
compared to the possible monetary results that would flow from securing a higher
penalty total. He has, however, considered the fact that he is maximizing his
prosecutorial impact in settling this case on appropriate terms and in litigating
other cases in which settlement is not appropriate. The Secretary believes that
maximizing his prosecutorial impact in such a manner serves a valid enforcement
purpose. Even if the Secretary were to substantially prevail at trial, and to obtain
a monetary judgment similar to or even exceeding the amount of the settlement, it
would not necessarily be a better outcome from the enforcement perspective than
the settlement, in which all alleged violations are resolved and violations that are
accepted can be used as a basis for future enforcement actions. A resolution of
this matter in which all violations are resolved is of significant value to the
Secretary and advances the purposes of the Act.
Motion at 2. Irrespective of the merits of such regularly-inserted and practical language, the
undersigned notes that one Commissioner in American Coal II cogently observed that “[t]he
Secretary’s boilerplate recitations of having evaluated the value of the compromise, the prospects
of coming out better or worse after a trial, and ‘maximizing his prosecutorial impact’ add
nothing” to the factual basis in support of settlement. American Coal II, 40 FMSHRC at 989
n.10 (Cohen, C.).

41 FMSHRC Page 389

other than the fact that Respondent violated the Act by allowing an untrained miner to work as a
hazard likely to result in lost workdays or restricted duty injury to himself and other miners. The
Secretary insists that the Commission has no right to seek clarification of the facts submitted to
justify a settlement motion and that the Secretary has no obligation to respond to questions from
Commission Judges regarding how he reached the conclusions he did in the settlement motion.
Assuming arguendo that the Secretary is correct,8 the undersigned is not obligated to approve a
settlement agreement that lacks factual support and fails to be fair, reasonable, and appropriate
under the facts, and to protect the public interest. Other than transparency, the undersigned sees
little substantive distinction between MSHA’s approach to the proposed settlement resolution in
this case and the pre-1977 enforcement regime that led to creation of the Commission’s
settlement approval authority in the first instance.
Under section 110(k), Commission judges do not act as a rubber stamp for the
Secretary’s proposed settlement agreements. As outlined above, the proposed Settlement
Agreement in this case lacks probative factual support, contains substantive admissions that
amount to an S&S designation, contravenes Commission precedent, and collides with
Congressional intent to protect the health and safety of our mining industry’s most precious
resource, our miners. Accordingly, the Secretary’s Motion to Approve Settlement is DENIED.
Under Commission Procedural Rule 76, 29 C.F.R. § 2700, the undersigned certifies, on
his own motion, that this interlocutory ruling involves a controlling question of law and that, in
his opinion, immediate review will materially advance the final disposition of the proceeding.
This Decision Rejecting Settlement raises similar issues to those currently before the
Commission on assignments of error in Solar Services, Inc., 39 FMSHRC 2052 (Nov. 2007)
(ALJ). As such, there is a question of law that would materially advance the final disposition of
the proceeding, to wit, whether the undersigned abused his discretion in denying the Secretary’s
Motion to Approve Settlement. See American Coal II, 40 FMSHRC at 987 (“The Commission
reviews a Judge’s denial of a proposed settlement under an abuse of discretion standard.”).
This interlocutory ruling is hereby CERTIFIED under Commission Procedural Rule 76,
29 C.F.R. § 2700.76. It involves a controlling question of law and interlocutory review will
materially advance the final disposition of the proceeding.

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

8

But see Solar Sources, Inc., Unpublished Order dated May 16, 2018 (granting
interlocutory review of 39 FMSHRC 2052 (Nov. 2017) (ALJ)).

41 FMSHRC Page 390

Distribution:
George Schorr, U.S. Department of Labor, MSHA, 515 West 1st Street, Suite 33, Duluth, MN
55802
Malcolm Dunbar, American Aggregates of Michigan, Inc., 51445 W. 12 Mile Road, Wixom, MI
48393
/ztb

41 FMSHRC Page 391