August 2022
TABLE OF CONTENTS

COMMISSION DECISIONS
08-24-22

PEABODY MIDWEST MINING,
LLC

LAKE 2019-0023

Page 515

COMMISSION ORDERS
08-03-22

TABLE ROCK ASPHALT
CONSTRUCTION, INC.

CENT 2018-361

Page 533

08-03-22

CALLENDER CONSTRUCTION
COMPANY, INC.

LAKE 2020-0189-M

Page 536

08-03-22

HARRISON SAND & GRAVEL CO., LAKE 2022-0069
INC.

Page 539

08-03-22

NEW POINT STONE CO., INC.

LAKE 2022-0071

Page 542

08-03-22

NEVADA READY MIX CORP

WEST 2020-0401

Page 545

08-05-22

COUNTY LINE STONE CO INC.

YORK 2022-0003

Page 548

08-22-22

MORTON SALT, INC.

CENT 2022-0135

Page 553

08-22-22

BOB BERGKAMP
CONSTRUCTION COMPANY, INC.

CENT 2022-0184

Page 556

08-22-22

ICG ILLNOIS LLC

LAKE 2022-0015

Page 559

08-22-22

UNITED TACONITE LLC

LAKE 2022-0059

Page 562

i

08-22-22

LAFARGE HOLCIM

LAKE 2022-0098

Page 565

08-22-22

FARWEST PORTABLE
CRUSHING, INC.

WEST 2020-0362

Page 568

08-22-22

KANAWHA EAGLE MINING, LLC

WEVA 2020-0476

Page 571

08-22-22

HARMAN BRANCH MINING INC.

WEVA 2021-0259

Page 574

08-24-22

LIBERTY AGGREGATES LLC

CENT 2022-0145

Page 577

08-24-22

NYRSTAR TENNESSE MINES
GORDONSVILLE, LLC

SE 2022-0118

Page 580

08-24-22

PREMIER MAGNESIA LLC

WEST 2022-0199

Page 583

08-25-22

CONSOL PENNSYLVANIA COAL
COMPANY, LLC

PENN 2022-0083

Page 586

08-26-22

WASHINGTON COUNTY
AGGREGATES, INC.

CENT 2022-0012

Page 590

08-26-22

GREEN BROTHERS GRAVEL
COMPANY, INC.

SE 2021-0194

Page 593

08-29-22

ESPINOZA STONE, INC.`

CENT 2021-0168

Page 597

ADMINISTRATIVE LAW JUDGE DECISIONS
08-17-22

COVOL FUELS NO.3 LLC

KENT 2022-0040

ii

Page 601

ADMINISTRATIVE LAW JUDGE ORDERS
08-18-22

CACTUS CANYON QUARRIES
INC

08-26-22

HEARING ORDER

CENT 2022-0010-M

Page 609
Page 613

iii

Review Was Granted In The Following Cases During The Month of August 2022
Secretary of Labor v. County Line Stone Co., Inc., et al.,
Docket Nos. YORK 2022-0003 et al. (PIR Judge Young, 6/28/2022)

iv

COMMISSION DECISIONS

44 FMSHRC Page 514

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

August 24, 2022
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos. LAKE 2019-0023
LAKE 2019-0122

v.
PEABODY MIDWEST MINING, LLC

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. LAKE 2019-0361

v.
MICHAEL BUTLER, employed by
PEABODY MIDWEST MINING, LLC

BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners
DECISION
BY THE COMMISSION:
This proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2018) (“Act” or “Mine Act”). It involves two orders issued to Peabody Midwest
Mining, LLC (“Peabody”) and two personal liability assessments issued to Peabody employee
Michael Butler.1 All four issuances arise from a methane event at Peabody’s Francisco Mine.
Order Nos. 9106663 and 9106664 allege that a drill team continued to operate energized
equipment after 5% methane was detected, in violation of requirements to de-energize equipment
and stop prohibited work if at least 1.5% methane is present. 30 C.F.R. §§ 75.323(c)(2)(ii), (iii).
Both were issued as significant and substantial (“S&S”) and the result of an unwarrantable

1

A third order involving a violation of the examination requirements at 30 C.F.R.
§ 75.512-2 has not been appealed.

44 FMSHRC Page 515

failure.2 Based on the same conduct, the Secretary of Labor also issued two personal liability
assessments against Mr. Butler, the mine manager and shift supervisor during the event, pursuant
to section 110(c) of the Act.3 The Administrative Law Judge affirmed both orders including the
S&S and unwarrantability findings, and both personal liability assessments. 44 FMSHRC 377
(May 2022) (ALJ) (previously unpublished decision initially issued on May 28, 2021).
On appeal, Peabody challenges the finding of a violation for Order No. 9106664 on
grounds that the work undertaken by the drill team was not prohibited under the terms of the
standard. Respondents also challenge the unwarrantability determinations for both orders and
both findings of personal liability. For the reasons below, we affirm the Judge’s decision.
I.
Factual and Procedural Background
A. Factual Background
In July 2018, Peabody contracted with REI Drilling to perform horizontal longhole
drilling in the return “0” entry for Unit 3, in order to identify old works, or previously mined
areas, that might be intersected when the continuous mining machine advanced. Jt. Stip. 19. This
was the fourth time such drilling had been conducted at Francisco mine, with no old works
previously encountered. Jt. Stip. 21-22. During the relevant quarter, Francisco Mine liberated
more than 1.7 million cubic feet of methane in a 24-hour period and was on a 5-day ventilation
spot inspection.4 Jt. Stip. 31-32.
REI driller Robert Ferrin and Peabody hourly employee John Stevens arrived at the drill
site at approximately 9:00 p.m. on July 22. Jt. Stip. 25. About five hours later, at 1:49 a.m. on
July 23, the drill hit a void and air began to exit the bore hole at significant pressure. Jt. Stip. 26.
Stevens testified that his personal multi-gas detector (“spotter”) showed elevated methane levels

2

The S&S and unwarrantable failure terminology is taken from section 104(d)(1) of the
Act, which distinguishes as more serious any violation that “could significantly and substantially
contribute to the cause and effect of a . . . mine safety or health hazard” and establishes more
severe sanctions for any violation caused by “an unwarrantable failure of [an] operator to comply
with . . . mandatory health or safety standards.” 30 U.S.C. § 814(d)(1).
3

If a corporate operator has violated a mandatory standard, section 110(c) of the Act
provides for the imposition of penalties for “any director, officer, or agent of such corporation
who knowingly authorized, ordered or carried out such violation.” 30 U.S.C. § 820(c).
4

Pursuant to section 103(i) of the Act, if the Secretary finds that a mine liberates more
than one million cubic feet of methane in a 24-hour period, an authorized representative of the
Secretary “shall provide a minimum of one spot inspection . . . of all or part of such mine during
every five working days at irregular intervals.” 30 U.S.C. § 813(i).

44 FMSHRC Page 516

moments after the drill hit the void.5 Tr. 253-55. Stevens immediately phoned the tracker and
asked him to contact mine manager Michael Butler, who was on Unit 3. Jt. Stip. 27; Tr. 252-54.
After Stevens returned from the phone, Ferrin directed Stevens to engage a blowout
preventer (“BOP”) to seal the hole. However, the pressure buildup was so great that methane
began seeping out of the rib. Ferrin was concerned that closing the BOP would blow out the drill
casing and they would lose control over the escaping gas, so he directed Stevens to open the
BOP back up. Ferrin decided that they would instead attempt to seal the borehole by pulling out
the drill rods and installing a plug (“packer”) into the hole. Tr. 60-63, 252-54. Unlike the BOP,
this process required the drill to be energized. Tr. 51.
The tracker contacted Butler at approximately 1:50 a.m. and stated that he was needed at
the drill site. Tr. 376-7. Butler and maintenance foreman Bradley Cary arrived at approximately
1:53 a.m., at which point Ferrin and Stevens had already started pulling drill rods. Tr. 99, 335,
339, 377. Stevens met Butler by the tender6 and informed him that they had hit old works. Tr.
336. As Butler approached the drill to speak with Ferrin, Butler’s spotter went over range (“OR”)
indicating the presence of at least 5% methane. Tr. 256, 337-38. Butler asked Ferrin about the
normal procedure after breaching old works, as Butler did not have relevant experience with this
type of drilling operation. Ferrin stated that the normal response was to pull the drill rods and
seal the hole. Butler agreed to the plan, let them continue, and went to call the tracker. Tr. 38-39,
51-52, 56-57, 336, 339-40.
Butler then directed Cary to return to Unit 3 to kill power to the equipment and prepare to
evacuate, with specific instructions not to kill power to the drill. Tr. 278, 290-92, 340, 375. Cary
returned to Unit 3 and enlisted the aid of production supervisor James Ford in shutting down the
equipment and preparing for evacuation. Tr. 278, 317. Evacuation of Unit 3 began at
approximately 1:57 a.m. Tr. 377. While Cary remained at Unit 3, Ford then headed to the drill
site, where Butler instructed him to find some curtains and improve ventilation over the drill. Tr.
317-18, 344. At approximately 2:22 a.m., Ford went back to the unit to get curtains. Tr. 322. He
then placed a curtain by the man door at crosscut 66 to push air into the 0 entry and a curtain at
crosscut 67 to put intake air across the drill. Tr. 318-21.
While Cary and Ford were traveling back and forth from Unit 3, Stevens and Ferrin
continued pulling drill rods. The drill had a methane detector which would shut down power to
the drill (“kick”) if methane levels reached 2%. The drill kicked and then restarted two to three
times over the relevant period, indicating that methane levels were fluctuating above and below
5

All individuals present during this event were wearing personal detectors (“spotters”)
set to indicate “over range” (“OR”) at 5.1% methane. Tr. 86, 183. Once the spotter had an OR
reading, it would have to be cleared (turned off) before it could get an accurate reading again. Tr.
254-55, 261-62, 390.
6

The tender is a hydraulic pump with an electric motor that runs the drill. Tr. 445-46.
The tender is located approximately 10 feet from the drill. Tr. 360-61. Butler and Stevens
testified that OR readings only happened next to or downwind from the drill, as opposed to the
area near the tender. Tr. 256, 341, 351.

44 FMSHRC Page 517

2%. Tr. 43-44, 70, 101, 119-20, 182, 260-64, 378-79. The record also establishes that Butler,
Stevens and Ferrin’s personal spotters each went over range at least twice during the relevant
period, though the exact timing is unclear. See Tr. 118-19, 253-55, 371-72; Gov. Exs. 9(b), 9(c)
(readouts of methane levels).
Meanwhile, general manager Brad Rigsby had been contacted by the tracking office and
informed of the breach and the methane. Tr. 399-401. He instructed the tracker to have Unit 3
cease operations and pull the miners out. Rigsby then made a call to the District Manager for the
Department of Labor’s Mine Safety and Health Administration (“MSHA”), who told him that he
needed to evacuate. Rigsby first interpreted this as an instruction to evacuate Unit 3 but later
clarified that the District Manager had meant evacuation of the entire mine. Tr. 401-02. Rigsby
headed to the mine, where he spoke to Butler (by phone) and learned that the drill team had been
pulling rods and was about to insert the packer plug. Rigsby ordered Butler to stop, shut
everything down, “let it bleed,” i.e., let the methane dissipate, and bring everyone out of the unit.
Tr. 404-05, 415.
Butler informed Ferrin and Stevens that they were to stop their work and prepare to
evacuate. Tr. 258, 282-83, 350-53. At this point, Ferrin and Stevens had finished pulling the drill
rods and were about to start pushing the packer into the casing. Tr. 73-74, 257, 350, 381. It
appears that approximately half an hour passed between Butler’s arrival at the drill site and
Rigsby’s evacuation order, and Ferrin and Stevens were pulling drill rods for a significant
portion of this time. See Tr. 102, 216, 377-78.
Butler directed Cary to go shut down power to the drill, which he did with the assistance
of mechanic Jesse Mitchell.7 Tr. 280-83, 350-53. Butler, Stevens, Ferrin, Cary, Mitchell and
Ford (who had just finished placing curtains) then left together at approximately 3:11 a.m. Tr.
105-06, 293; Gov. Ex. 8, at 2. Cary put a lock on the substation once he reached the surface. The
borehole was eventually sealed on July 24. Jt. Stip. 28.
MSHA Inspector Keith Duncan was assigned as the accident investigator on July 26.
After conducting interviews and collecting data from the spotters, he issued the relevant orders
on August 16, 2018. Gov. Ex. 2-3; Tr. 83, 87-89. MSHA Special Investigator Phillip Stanley
subsequently notified Butler of section 110(c) personal assessments based on the same
underlying conduct.
B. Judge’s Decision
The Judge found that Peabody violated sections 75.323(c)(2)(ii) and (iii) because the drill
remained energized and miners continued to pull drill rods for at least half an hour despite the
presence of methane levels in excess of 1.5%. 44 FMSHRC at 383, 389-90. With regard to Order
No. 9106664, he found that removing the drill rods was remedial action meant to address the
methane source and was therefore prohibited “other work.” Id. at 390.
7

The record is inconsistent as to how many trips Cary made to the drill site in total.
Butler’s testimony suggests three (Tr. 347, 375-76) while Cary’s testimony indicates only two
(Tr. 280-84).

44 FMSHRC Page 518

The Judge affirmed the S&S designation for both orders, reasoning that the combination
of high methane levels, an energized drill, and the presence of miners was reasonably likely to
result in an explosion and serious injury. Id. at 384, 390-91. He also affirmed the high negligence
and unwarrantable failure designations for both orders. Conceding that the drill team worked in
good faith to address a dangerous condition, he nevertheless found that the violations were
obvious, known and highly dangerous, and of an extent and duration sufficient to support an
unwarrantability finding. Id. at 385-88, 391.
Finally, the Judge found Butler personally liable for the operator’s violations of sections
75.323(c)(2)(ii) and (iii). He explained that Butler was aware of at least two OR readings and had
authority to shut down the drill and evacuate miners, but instead oversaw the continued operation
of the energized drill for at least half an hour. Accordingly, he found that Butler was an agent of
the operator who knew of the violative conditions and was in a position to remedy the situation
but failed to act. Id. at 392.
Balancing findings of high gravity and negligence against Peabody and Butler’s efforts to
swiftly abate the methane hazard, the Judge assessed $38,000 per order to Peabody, and $3,000
per assessment to Butler. Id. at 396.
C. Arguments on Appeal
Peabody concedes that it failed to de-energize in violation of section 75.323(c)(2)(ii)
(Order No. 9106663) but challenges the Judge’s finding that the miners were engaged in work
that was prohibited under section 75.323(c)(2)(iii) (Order No. 9106664). Peabody claims the
Judge’s interpretation of “other work” was overly restrictive, and section 75.323(c)(2) should be
read to allow ventilation control and other work intended to manage methane. As Ferrin and
Stevens were working to prevent methane from escaping, Peabody states there was no violation.
P. Br. at 12-18. The Secretary counters that the standard prohibits anything other than work
necessary to deenergize equipment or withdraw miners, and explicitly prohibits work with
energized equipment. S. Br. at 18-20.
Peabody also challenges the Judge’s findings of unwarrantable failure for both orders.
Peabody takes issue with the Judge’s findings on the extent, duration, and degree of danger
associated with the violations. P. Br. at 20-29. Peabody also contends more generally that the
Judge failed to give sufficient weight to Butler’s good faith belief that he was acting
appropriately and in the interests of safety. Id. at 20-21. The Secretary counters that any good
faith belief was unreasonable in this instance. S. Br. at 27.
Finally, Respondents claim that Butler’s conduct did not meet the level of culpability
required for personal liability because Butler reasonably believed the cited conduct was safe. P.
Br. at 29-33. Alternatively, Peabody claims Butler was trying to address the methane hazard and
therefore did not fail to act to correct the condition. Id. at 31. The Secretary reiterates that any
good faith belief in the safety of such conduct was not reasonable. S. Br. at 31-32.

44 FMSHRC Page 519

II.
Disposition
As discussed below, we affirm the finding of a violation for Order No. 9106664 on
narrow grounds, concluding that the specific energized work undertaken by the miners was
plainly prohibited by the cited standard. We also find the Judge’s unwarrantable failure and
personal liability determinations are supported by substantial evidence.8 Finally, we reject
Respondents’ argument that culpability should not attach due to Butler’s reasonable and good
faith belief that the cited conduct was in the interests of miner safety, because we find the belief
was not reasonable in this instance.
A. The Finding of a Violation for Order No. 9106664 is Affirmed
Order No. 9106664 alleges a violation of section 75.323(c)(2)(iii), which prohibits “other
work” when methane levels exceed 1.5%. Section 75.323(c)(2) provides that, when 1.5% or
more methane is present in a return air split:
(i)
(ii)

(iii)

Everyone except those persons referred to in § 104(c) of the
Act shall be withdrawn from the affected area;
Other than intrinsically safe AMS, equipment in the
affected area shall be deenergized, electric power shall be
disconnected at the power source, and other mechanized
equipment shall be shut off; and
No other work shall be permitted in the affected area until
the methane concentration in the return air is less than 1.0
percent.

30 C.F.R. § 75.323(c)(2) (emphasis added).
The basic facts relevant to this determination are straightforward and effectively
undisputed: In an area where methane levels were fluctuating above 1.5%, miners were engaged
in efforts to reduce methane levels by pulling drill rods with an energized drill.9 See, e.g., Tr. 4244, 51, 70, 74, 101-02, 182, 253-55, 260-64, 338-39, 371-72. Work occurred where more than
1.5% methane was present. Accordingly, this matter turns on the legal question of whether the
8

When reviewing a judge’s factual determinations, the Commission is bound by the
terms of the Mine Act to apply the substantial evidence test. 30 U.S.C. § 823(d)(2)(A)(ii)(I).
“Substantial evidence” means “‘such relevant evidence as a reasonable mind might accept as
adequate to support [the judge’s] conclusion.’” Rochester & Pittsburgh Coal Co., 11 FMSHRC
2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
9

Peabody has not contested the violation for Order No. 9106663, i.e., that the drill was
energized when more than 1.5% methane was present. Peabody does not claim that no work was
occurring in the presence of elevated methane, only that it was not prohibited “other work.” See
P. Br. at 3-5, 14-18.

44 FMSHRC Page 520

work was prohibited by the standard. The definition of “other work” for purposes of section
75.323(c)(2)(iii) is a matter of first impression. For the reasons below, we find this work—using
an energized drill to remove drill rods—was prohibited.
The “language of a regulation . . . is the starting point for its interpretation.” Dyer v.
United States, 832 F.2d 1062, 1066 (9th Cir. 1987). Where the language of a regulatory
provision is clear, the terms of that provision must be enforced as they are written unless the
regulator clearly intended the words to have a different meaning or unless such a meaning would
lead to absurd results. See id.; Dynamic Energy Inc., 32 FMSHRC 1168, 1171 (Sept. 2010).
We find the plain language of the safety standard unambiguously prohibits the specific
conduct at issue. Section 75.323(c)(2) has three requirements: operators must (i) withdraw
miners from the affected area, (ii) deenergize equipment and disconnect power sources, and (iii)
permit no other work until methane levels drop. Critically, the “and” clarifies that operators must
comply with all three paragraphs. The plain language of the standard prohibits energized work,
and the miners were using an energized drill. Therefore, Ferrin and Stevens’ efforts with the drill
constituted “other work” prohibited by the standard.
While the language of the standard speaks for itself, we note that the preamble to the final
rule for section 75.323 also supports reading the three paragraphs in concert. The preamble states
that “other work” in paragraph (b)(1)(i) should be “considered in context of the preceding
requirement in paragraph (ii).” 61 Fed. Reg. 9764, 9778 (March 11, 1996). In other words, “other
work” should be interpreted within the context of the other paragraphs within the subsection.
“Other work” in paragraph (c)(2)(iii) should be interpreted consistent with the requirement in
paragraph (c)(2)(ii) that equipment be deenergized.
Interpreting section 75.323(c)(2) to prohibit energized work is consistent with the intent
of the standard as well as the plain language. The preamble clearly articulates and emphasizes
the ignition hazard posed by allowing energized equipment in a high-methane environment. In
discussing subsection (b)(2), the preamble explains that requiring power to be disconnected at
the power source “prevents accidental energization of equipment and removes power from cables
and circuits which may also be ignition sources.” Id. Similarly, the preamble rejected a
suggestion that certain equipment be permitted to run on battery power, stating that any benefits
“would not outweigh the potential ignition hazard” and such a course “would be a departure
from accepted, effective, and long-standing safety practice.” Id. The standard does envision some
work, as it “permit[s] appropriate actions to be taken . . . in order to prevent an explosion.” Id. at
9777 (emphasis added). However, actions which increase the likelihood of an explosion by
introducing a possible ignition source clearly would not be “appropriate” under this framework.
The standard is not intended to permit energized work.
The Judge and the parties reach differing conclusions as to the full scope of “work”
permitted by section 75.323(c)(2). The Secretary takes the narrowest approach, arguing that the
standard only permits those tasks explicitly listed in the surrounding subsections, i.e., work
related to evacuation or de-energizing. The Judge defines permissible work more broadly,
looking to the preamble to conclude that ventilation work is permitted but remedial work to
correct the underlying methane hazard is not. 44 FMSHRC at 390. Peabody’s definition is

44 FMSHRC Page 521

broader still, arguing that the standard implicitly allows for both ventilation work and other
forms of methane control.10
For purposes of this decision, it is unnecessary to fully define the categories of work
permitted by the standard or address the reasonableness of the parties’ definitions.11 Irrespective
of whether the standard permits ventilation work or other forms of methane control, the work
cannot conflict with the plainly stated requirement in subsection (c)(2)(ii) that all equipment be
de-energized. Because Ferrin and Stevens were engaged in work with an energized drill, that
work was not permissible. We affirm Judge’s finding of a violation on different grounds.
As a final matter, Peabody suggests there should be no violation where compliance is less
safe than non-compliance, and that allowing the drill team to continue attempting to plug the
methane leak was safer than de-energizing and stopping work. P. Br. at 17 n.4, 18. The
Commission has long held that diminution of safety may not be raised as a defense in an
enforcement proceeding unless the operator has first petitioned for modification of the relevant
safety standard.12 Clinchfield Coal Co., 11 FMSHRC 2120, 2130 (Nov. 1989). No such petition
has been filed here. Insofar as Peabody is raising a “diminution of safety” defense, it is rejected.
B. The Unwarrantable Failure Determinations for Both Orders are Affirmed
The Commission has determined that unwarrantable failure means aggravated conduct
constituting more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec.
1987). Whether conduct is “aggravated” in the context of unwarrantable failure is determined by
looking at the facts and circumstances of each case to see if any aggravating factors exist, such as
the operator’s knowledge of the existence of the violation, whether the violation was obvious,
whether the violation posed a high degree of danger, the extent of the violative condition, the
length of time that the violative condition has existed, the operator’s efforts in abating the
violative condition, and whether the operator has been placed on notice that greater efforts are
necessary for compliance. See Manalapan Mining Co., 35 FMSHRC 289, 293 (Feb. 2013); IO
Coal Co., 31 FMSHRC 1346, 1350-57 (Dec. 2009).
Section 75.323(c)(2)(i) references section 104(c) of the Mine Act, which exempts from
evacuation requirements “any person whose presence in such area is necessary . . . to eliminate
the condition described in the order.” 30 U.S.C. § 814(c).
10

11

We note, however, that Inspector Duncan’s understanding of permissible work differs
from the Secretary’s litigation position. He testified that ventilation control is permitted so long
as it does not involve the use of powered equipment. Tr. 127, 148-49.
12

Section 101(c) of the Act states that, upon petition by an operator, the Secretary may
modify a mandatory safety standard if “application of such standard to such mine will result in a
diminution of safety to the miners.” 30 U.S.C. § 811(c). An operator may raise this affirmative
defense without a modification petition if it can show that a modification proceeding would have
been inappropriate. Westmoreland Coal Co., 7 FMSHRC 1338, 1341 (Sept. 1985). Here,
Peabody’s statement that the modification process is lengthy and “has no application here” (P.
Reply Br. at 13) is insufficient to establish the impropriety of the more traditional route.

44 FMSHRC Page 522

The Judge affirmed the unwarrantable failure designations for both orders.13 He
acknowledged Peabody’s good faith efforts to address the underlying methane hazard but found
that the violative conditions were known, obvious, extensive, extremely dangerous, and of
sufficient duration to support a finding of aggravated conduct. 44 FMSHRC at 385-88, 391. As
discussed below, the Judge’s findings are sufficiently supported by substantial evidence to affirm
the unwarrantable failure determinations.
The record establishes that the violations were known and obvious. Butler arrived at the
drill site within minutes of the initial methane event, was informed of the plan to use the drill,
approved of the plan, and remained nearby until the final order for evacuation. Tr. 338-40, 345,
376-79. During this time, the drill kicked at least twice indicating the presence of 2% methane,
and his own spotter gave an “over range” reading at least twice indicating the presence of 5%
methane. Tr. 182-83, 338, 370-71, 378. It was obvious and known to an agent of the operator
that equipment was energized and in use with methane fluctuating above 1.5%.14
With respect to extensiveness, the Judge found that “no less than six miners were allowed
to remain” in an area with high methane levels and an energized drill.15 44 FMSHRC at 386. The
record clearly shows that six miners remained in the general area, with at least two directly by
the drill; Ferrin and Stevens worked the drill, Butler oversaw their work, and Cary, Ford and
Mitchell traveled between the drill site and nearby areas to assist in evacuation and ventilation
control. See Tr. 277-78, 280-81, 293, 344, 377-78. Extensiveness is not simply a matter of
affected area, but “the material increase in the degree of risk to miners posed by the violation.”
Eastern Associated Coal Corp., 32 FMSHRC 1189, 1196 (Oct 2010). In some situations,
extensiveness may turn on the number of persons affected by a violation. Dawes Rigging &
Crane Rental, 36 FMSHRC 3075, 3079-80 (Dec. 2014) (finding a violation non-extensive where
the conduct only endangered one individual). The Judge’s extensiveness determination is
consistent with Commission precedent and substantially supported by the record.
The Judge “unequivocally” found a high degree of danger sufficient for aggravated
conduct, based on a central finding that the drill “remained energized even while methane levels
13

The two orders at issue in this proceeding describe two aspects of related conduct
(having and using energized equipment) arising from the same event and occurring under the
same conditions. The Judge reasonably incorporated the bulk of his unwarrantable failure
analysis of Order No. 9106663 into his analysis of Order No. 9106664 by reference. 44
FMSHRC at 391 n.3. We also jointly address the unwarrantability of both issuances.
14

At the time of these events, Butler was a mine manager and shift supervisor with
authority to direct work. Jt. Stip. 7, 30; Tr. 364-65. Accordingly, his conduct may be imputed to
Peabody for unwarrantable failure purposes. E.g., Newtown Energy Inc., 38 FMSHRC 2033,
2046 (Aug. 2016).
15

The Judge noted that 60 miners would initially have been at risk in the event of an
explosion, but he conceded that the evacuation of Unit 3 significantly lowered the number of
affected miners and acknowledged that the affected area was limited to the drill site. 44
FMSHRC at 385-86. Peabody’s claim that the Judge failed to consider the limited physical area
or the effect of the evacuation (P. Br. at 21-22) mischaracterizes the Judge’s determination.

44 FMSHRC Page 523

nearby exceeded five percent, creating the conditions that could have led to combustion and a
major accident.” 44 FMSHRC at 387. The record supports the Judge’s factual finding that
equipment was energized while methane reached combustible levels. Butler, Stevens and
Ferrin’s spotters each gave “over range” readings at least twice during the half hour that Stevens
and Ferrin were engaged in pulling drill rods. Tr. 118-19, 183, 253-55, 371-72, 377-78; Gov. Ex.
9(b), 9(c). The danger inherent in combining elevated methane levels with a possible ignition
source (energized equipment) is well recognized.16 See 61 Fed. Reg. at 9777-78; Tr. 219. We
accept the Judge’s determination that working with an energized drill while methane reached
combustible levels posed a high degree of danger. See, e.g., Warren Steen Constr., Inc., 14
FMSHRC 1125, 1129 (July 1992) (finding aggravated conduct based on “common knowledge
that power lines are hazardous”).
Ferrin and Butler suggest there was no risk of ignition because methane is combustible at
5% but the drill would shut off when methane levels reached 2%. Tr. 77, 349. Significantly,
however, section 75.323(c)(2)(ii) requires equipment to be deenergized and power to be shut off
at the power source whenever methane reaches 1.5%. The standard envisions possible ignition
where methane levels are below 2%, and where equipment is “off” but there is still some power
in the system. See 61 Fed. Reg. at 9778 (disconnecting power at the source “prevents accidental
energization . . . and removes power from cables and circuits which may also be ignition
sources”). Moreover, moments when the drill had kicked (and was therefore “off” but not fully
de-powered) would naturally be the moments with higher methane levels. The fact that the drill
was not in active operation when methane went above 2% does not eliminate the risk of
ignition.17
Peabody also claims the Judge failed to consider that the work Ferrin and Stevens were
engaged in would have eliminated the danger posed by the methane. P. Br. at 28. However, the
question is not whether the conduct would have eventually eliminated an underlying hazard, but
whether the violation itself posed a high degree of danger. E.g., IO Coal, 31 FMSHRC at 1355.
The violative conduct here may have eventually reduced methane levels, but it also introduced
an ignition source before methane levels had been reduced. Peabody’s efforts to mitigate one
hazard introduced another, more immediate hazard. Thus, the Judge reasonably found that
introducing a potential source of ignition into an environment with periodically combustible
levels of methane posed a high degree of danger.
With respect to duration, the Judge considered testimony that the drill was energized for
half an hour and testimony that the six miners exited an hour after the inundation and concluded
that “the drill remained energized for 30-60 minutes.” 44 FMSHRC at 386. Peabody suggests
16

We note that Peabody has not contested the Judge’s S&S finding that the presence of
an ignition source such as an energized drill in conditions of 5% methane is reasonably likely to
cause an explosion. 44 FMSHRC at 384.
17

This analysis holds for Order No. 9106664 as well as Order No. 9106663. Although
miners were not actively engaged in pulling drill rods during moments when the drill kicked
power, they remained engaged in ongoing work that kept them by the drill. And as discussed
above, the drill posed a potential ignition hazard even when not in operation. The fact that the
miners were engaged in the work of pulling drill rods resulted in exposure to a dangerous hazard.

44 FMSHRC Page 524

that the Judge overestimated the length of exposure by focusing on the evacuation time rather
than the period that the drill was energized. P. Br. at 22-23. We agree. The violative condition
was the presence and use of energized equipment, and substantial evidence only supports a
finding that energized work was ongoing for approximately half an hour.18 However, we note
that the Judge provided a range, and substantial evidence supports the lower end of that range.
Peabody also claims the Judge’s duration analysis failed to account for the intermittent
nature of the elevated methane. The Judge conceded that methane levels dipped below 1.5% but
emphasized that the methane also reached combustible levels multiple times. 44 FMSHRC at
386-87. As the Judge reasoned, the Commission has held that brief duration does not militate
against a finding of unwarrantable failure where the condition is distinguishable by its high
degree of danger and obvious nature, as is the case here. Id. at 386 (citing Knight Hawk Coal
LLC, 38 FMSHRC 2361, 2371 (Sept 2016)); Midwest Material Co., 19 FMSHRC 30, 36 (Jan.
1997). Given the weight of other factors indicating aggravated conduct, in particular the high
degree of danger, the evidence that duration was intermittent and on the lower range of the
Judge’s estimation is not fatal to a determination of unwarrantable failure.
The Judge found five aggravating factors—obviousness, knowledge, extent, degree of
danger and duration—with particular emphasis on degree of danger.19 See San Juan Coal Co.,
29 FMSHRC 125, 129-30 (Mar. 2007) (finding that judges have discretion to reasonably give all
relevant factors more or less weight). The Judge’s factual findings are supported by substantial
evidence, and his overall weighing of factors is reasonable. Respondent’s actions in allowing the
presence and use of energized equipment with methane levels fluctuating above 2% and 5%
constitutes aggravated conduct.
As a final matter, Peabody claims there was no aggravated conduct because Butler (as
Peabody’s agent) reasonably believed the chosen course of action was proper. P. Br. at 20-21.
The Commission has held that an operator’s reasonable and good faith belief that cited conduct
complied with applicable law can be a defense to an unwarrantable failure allegation. IO Coal,
31 FMSHRC at 1357-58; Cypress Plateau Mining Corp., 16 FMSHRC 1610, 1614–16 (Aug.

18

Energized work began shortly before Butler’s 1:53 a.m. arrival and ended shortly
before Rigsby’s 2:25 a.m. evacuation order. See Tr. 185, 237, 339, 350, 377, 381.
19

In addition to the five factors discussed above, the Judge found that the operator’s
efforts to abate the methane hazard were a mitigating factor, and there was no evidence to
suggest that the operator had been given notice that greater efforts were necessary for
compliance. 44 FMSHRC at 388. Regarding abatement, we generally agree that the instinct to
address the underlying methane hazard was laudable. However, the question is whether the
operator made efforts to abate the violative condition, and the violative condition here is the
existence and use of energized equipment. Abatement would consist of stopping work and deenergizing. Regardless, any error in the Judge’s analysis on this point is harmless, as giving less
weight to a mitigating factor only strengthens the finding of unwarrantable failure.

44 FMSHRC Page 525

1994). We concur with the Judge’s finding that any such belief was unreasonable in this
instance.20
There is evidence to suggest that Butler genuinely believed the chosen course of action
was compliant with safety regulations. Ferrin told Butler that it was normal protocol to pull the
drill rods in the event of a breach, and Butler chose to defer Ferrin’s expertise.21 Tr. 339-40, 345,
366. However, as discussed above, the standard plainly prohibits work with energized equipment
where methane levels are above 1.5%. A supervisor familiar with the regulations would not
reasonably have followed advice contrary to the plain language of the standard.22 Notably, as
soon as General Manager Rigsby learned that miners had been working with an energized drill,
he immediately ordered Butler to shut everything down, stop work and evacuate. Tr. 404-05,
415, 418-19. Assuming Butler believed Ferrin’s recommended course of action was compliant
with the Secretary’s regulations, such a belief was not reasonable. The defense fails, and the
Judge’s findings of unwarrantable failure stand.
C. The Personal Liability Assessments are Affirmed
Section 110(c) of the Act provides that “[w]henever a corporate operator violates a
mandatory health or safety standard,” any agent of the operator “who knowingly authorized,
ordered or carried out such violation” shall be subject to penalties. 30 U.S.C. § 820(c). An
individual acts knowingly where he is “in a position to protect employee safety and health [and]
fails to act on the basis of information that gives him knowledge or reason to know of the
existence of a violative condition.” LaFarge Constr. Materials, 20 FMSHRC 1140, 1148 (Oct.
1998); Kenny Richardson, 3 FMSHRC 8, 16 (Jan. 1981). Consistent with this caselaw, the Judge
outlined a three-part test attaching liability where an agent (1) knew or had reason to know of,
(2) was in a position remedy, and (3) failed to act to correct a violative condition. 44 FMSHRC
20

Although the Judge did not explicitly conduct an analysis of this “reasonable and good
faith belief” defense, his finding on the issue is clear. He states in his unwarrantable failure
analysis that, in light of MSHA’s safety standards, “no prudent operator would have believed
that it was reasonable” to continue powering the drill or permit miners to continue working in a
high-methane environment. 44 FMSHRC at 388, 391.
21

Peabody argues that it was reasonable for Butler to trust Ferrin’s expertise because
Butler had no experience with this type of methane event. P. Br. at 21; Tr. 366. This argument
appears to suggest ignorance as a defense, which the Commission has rejected in the negligence
context. Oak Grove Res LLC & Bienia, 38 FMSHRC 1273, 1279-80 (June 2016). Regardless, the
question is not whether it was reasonable for Butler rely on Ferrin, but whether the belief was
reasonable, i.e., that a reasonable person would believe pulling drill rods using energized
equipment in an environment with periodic high methane was permissible.
22

As noted above, we do not decide here the full scope of “other work” prohibited by the
standard, only that the standard clearly prohibits work with energized equipment. If different,
non-energized conduct had been at issue—for example, if Peabody had been cited for pulling
drill rods by hand—an argument for reasonable belief in compliance might have produced a
different result.

44 FMSHRC Page 526

at 391. The Judge concluded that Butler met all three requirements. Substantial evidence,
including testimony from Butler himself, supports the Judge’s personal liability finding.
Butler testified that he learned of Stevens’ OR reading when he arrived at the drill site,
and his own spotter gave an OR reading shortly thereafter. Tr. 337-39, 351. He then approved the
plan to pull the drill rods and stayed at the drill site as the work continued. Tr. 339-40. While he
was at the drill site, the drill kicked two or three times and Butler’s spotter gave another OR
reading. Tr. 370-71, 378. In other words, Butler knew that methane was fluctuating above 2%
and 5%, and that energized work was occurring. Butler had knowledge that work on energized
equipment was occurring where more than 1.5% methane was present.23
Butler was also in a position to remedy the violative conduct. He testified that he was the
“number one man” on site and had the authority to direct work. Tr. 364-65. Ferrin and Stephens
agreed that they would follow Butler’s instructions. Tr. 48-49, 258-59, 268. Remedying the
violative conduct would have involved shutting down equipment and stopping work, and Butler
had the authority to do so. Instead, Butler allowed the drill team to continue.24 Tr. 292, 339-40,
345-46. Butler knew of work with energized equipment in a high-methane environment, had the
power to stop it, and did not do so. The requirements for personal liability are met.
Respondents contend that Butler’s actions do not meet the level of culpability required
for personal liability because he believed his chosen course of action best served miner safety. P.
Br. at 29-34. As with unwarrantable failure, the Commission has held that personal liability is
predicated on aggravated conduct constituting more than ordinary negligence. BethEnergy
Mines, Inc., 14 FMSHRC 1232, 1245 (Aug. 1992); Austin Powder Company and Eaton, 21
FMSHRC 18, 26-27 (Jan. 1999). Accordingly, a reasonable and good faith belief in the safety of
the cited conduct may provide a defense against personal liability.25 Lafarge, 20 FMSHRC at
23

The record need not establish that Butler knew the conduct violated the standard, only
that he knew of the conduct. See Kenny Richardson, 3 FMSHRC at 16; Freeman United Coal
Mining Co. v. FMSHRC, 108 F.3d 358, 363 (D.C. Cir. 1997). Peabody’s argument that there was
no knowing violation because Butler trusted Ferrin’s advice (P. Br. at 32) fails.
24

Peabody claims Butler was acting to correct the violative condition, by having Ferrin
and Stevens plug the borehole to reduce methane levels. P. Br. at 31. As noted, see n.19 supra,
the violative conditions requiring correction were the presence and use of energized equipment
in a high-methane environment, not the presence of high methane itself.
25

In the unwarrantable failure context, the focus of this defense is belief in compliance
with the cited standard. See, e.g., Oak Grove, 38 FMSHRC at 1279-80 (finding it unreasonable
to believe a method of moving supply cars was compliant). This is consistent with the
unwarrantable failure analysis’ interest in whether an operator knew of the violation. Personal
liability, however, turns on knowledge of the condition. See n. 23 supra. Accordingly, weight
may be given to a belief in safety. See Lafarge, 20 FMSHRC at 1150 (“An unreasonable belief
that a practice is safe . . . is not a defense to liability. . . .”); see Wyoming Fuel Co., 16 FMSHRC
1618, 1629-30 (Aug. 1994) (where a manager reasonably believed his actions would correct
(continued…)

44 FMSHRC Page 527

1150; cf. Cyprus Plateau, 16 FMSHRC at 1615-16 (addressing unwarrantable failure). Here, we
find that any belief that the cited conduct was safe was unreasonable.26
As a preliminary matter, we echo the Judge’s sentiment that Butler’s good faith efforts to
address the source of the methane hazard would be “laudable” in different circumstances. 44
FMSHRC at 389. Testimony from Butler and others indicate Butler genuinely believed allowing
Ferrin and Stevens to pull drill rods and plug the borehole was the best way to reduce the risk of
a methane explosion. Tr. 311-12, 345-46, 384, 386. Substantial evidence indicates that Butler
had a good faith belief that he was acting in the interest of miner safety.
However, we are unconvinced that the cited conduct could reasonably be considered
safe. By permitting miners to work with energized equipment, Butler risked incurring the very
hazard section 75.323(c)(2) is intended to address, i.e., potential ignition a in high-methane
environment. Peabody argues that ignition was unlikely because methane was below 2%
whenever the drill was operating. P. Br. at 33; Tr. 77, 349. However, as discussed above, the
standard envisions a risk of ignition below 2% and where equipment is “off” but there is still
power in the system.
Respondents also point out that there had been no ignition up to the point at which
Rigsby ordered evacuation, and the methane hazard could have been resolved with just a few
more minutes of energized work. P. Br. at 33; Tr. 345, 386. However, safety requires more than
luck and optimism. Just as the occurrence of an ignition is not necessary to prove an ignition
hazard existed, the absence of an ignition does not prove that an ignition hazard did not exist. Cf.
Arch of Kentucky, 20 FMSHRC 1321, 1330 (Dec. 1998) (the Secretary need not show that a
violation caused an accident to prove that the violation was S&S). The energized drill introduced
a potential ignition source, which fortunately did not result in an ignition in this instance. Further
extending the period to allow Ferrin and Stevens to finish their work was a risk. Incurring a risk
of ignition is not a reasonably safe method of addressing an ignition hazard.
Nor could the cited conduct reasonably be considered the safest option of addressing the
more general hazard of a methane explosion. Combustion requires both elevated methane levels
and an ignition source. The compliant method of addressing the combustion hazard would have
been to stop work, de-energize equipment, let the methane bleed out and evacuate. Butler was
aware of this option, and this was the course of action ultimately taken by the mine manager. Tr.
345-46, 393, 404-05, 415. Under this approach, methane levels would have taken some time to

25

(…continued)
methane problems and comply with the Secretary’s regulations, the manager was not subject to
personal liability and the violation was not unwarrantable).
26

The Judge did not directly address this defense in his personal liability analysis.
However, he found in his unwarrantable failure analysis that allowing miners to work with
energized equipment in a high-methane environment was unreasonable given the significant risk
it posed to miner safety. 44 FMSHRC at 388, 391. In other words, it was not reasonable to
believe the cited conduct was safe. The failure to explicitly reiterate this finding is at most
harmless error.

44 FMSHRC Page 528

abate, but risk of ignition would have been significantly reduced and miners would have been
removed from danger.
Instead, Butler approved energized work to plug the borehole. Essentially, Butler
determined that the benefit of rapidly reducing methane levels outweighed the risk of incurring
ignition. Butler’s approach may have been more efficient with respect to reducing methane
levels, but in the short term it increased the chances of combustion. Reducing excessive methane
is a worthwhile goal, but not if the mine explodes first.27 Butler’s course of action was not the
reasonable choice for miner safety. The defense is rejected, and the personal liability assessments
stand.
IV.
Conclusion
For the reasons above, the Judge’s decision is affirmed.

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

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

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

27

Cary testified that working to quickly resolve the methane leak was safer than allowing
methane to build up during the 45 minutes it would take to evacuate. Tr. 311-12. However,
assuming arguendo that circumstances exist where it would be appropriate to incur a risk of
ignition, Cary’s math does not add up. Ferrin stated that he and Stevens could have plugged the
methane leak with another 15-20 minutes of work. Tr. 71. However, they had already been
working for approximately half an hour when they were ordered to stop and evacuate. In other
words, miners could spend 45 minutes evacuating with elevated methane levels but no potential
ignition sources, or 45 minutes working with elevated methane levels and potential ignition
sources (followed by 45 evacuating in high methane if the attempt to plug the leak failed). Cary’s
testimony fails to convince that the chosen course of action was safer than simply getting
out of the mine.

44 FMSHRC Page 529

Distribution:
R. Henry Moore
Fisher & Phillips LLP
6PPG Place, Suite 830
Pittsburgh, PA 15222
hmoore@fisherphillips.com
Susannah M. Maltz
Office of the Solicitor, U.S. Department of Labor
Division of Mine Safety and Health
201 12th Street South, Suite 401, Arlington, VA 22202
Maltz.Susannah.M@dol.gov
Emily Toler Scott, Esq.
Counsel for Appellate Litigation
Office of the Solicitor, U.S. Department of Labor
Division of Mine Safety and Health
201 12th Street South, Suite 401
Arlington, VA 22202
Scott.Emily.T@dol.gov
April Nelson, Esq.
Associate Solicitor
Office of the Solicitor, U.S. Department of Labor
Division of Mine Safety and Health
201 12th Street South, Suite 401
Arlington, VA 22202
Nelson.April@dol.gov
Melanie Garris
Civil Penalty Compliance Division Chief
U.S. Department of Labor, Office of Assessments
Mine Safety and Health Administration
201 12th Street South, Suite 401
Arlington, VA 22202
Garris.Melanie@dol.gov
Chief Administrative Law Judge Glynn F. Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, NW, Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov
Administrative Law Judge David Simonton
Federal Mine Safety & Health Review Commission

44 FMSHRC Page 530

721 19th Street, Suite 443
Denver, CO 80202-2500
DSimonton@fmshrc.gov

44 FMSHRC Page 531

COMMISSION ORDERS

44 FMSHRC Page 532

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

August 3, 2022
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. CENT 2018-361
A.C. No. 23-01836-466310

TABLE ROCK ASPHALT
CONSTRUCTION, INC.
BEFORE:

Traynor, Chair; Althen and Rajkovich, Commissioners
ORDER

BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”). On March 11, 2019, the Commission received from Table
Rock Asphalt Construction, Inc. (“Table Rock”) a motion seeking to reopen a penalty
assessment proceeding and relieve it from the Default Order entered against it.
On October 15, 2018, the Chief Administrative Law Judge issued an Order to Show
Cause in response to Table Rock’s failure to answer the Secretary of Labor’s Petition for
Assessment of Civil Penalty, which was issued on August 9, 2018. By its terms, the Order to
Show Cause was deemed a Default Order on October 31, 2018, when the operator had not filed
an answer within 30 days.
Table Rock asserts that it did not realize that it had failed to file an answer until it was
notified while conducting settlement negotiations in this case with a Conference Litigation
Representative with the Department of Labor’s Mine Safety and Health Administration. The
operator states that its safety manager, who was responsible for maintaining records and filing
answers, had recently been replaced. Table Rock also notes that there is a copy of its Answer in
its files but admits that it has no way to confirm that the answer was mailed to the proper
addresses. The Secretary does not oppose the request to reopen, but urges the operator to take
future penalty petitions seriously and answer them in a timely manner.
The Judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R.
§ 2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a judge’s
decision may be sought by filing a petition for discretionary review within 30 days of its
issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not
direct review within 40 days of a decision’s issuance, it becomes a final decision of the
Commission. 30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here has become a final
decision of the Commission.

44 FMSHRC Page 533

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”); Jim Walter Res., Inc.,
15 FMSHRC 782, 786-89 (May 1993). 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 will be permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Table Rock’s request and the Secretary’s response, we find that the
operator acted with excusable neglect due to its safety manager being replaced during the time in
question, and that it acted in good faith in intending to timely file its answer based on the copy of
the answer retained in the operator’s files. In the interest of justice, we hereby reopen the
proceeding and vacate the Default Order. Accordingly, this case is remanded to the Chief
Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700.

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

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

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

44 FMSHRC Page 534

Distribution:
Jeff Irwin, Safety Officer
Table Rock Asphalt Construction Co.
310 N. Commercial
Branson, MO 65616-2407
jirwin@tablerockasphalt.com
tere@tablerockasphalt.com
Jim David, General Manager
Trac Materials, Inc.
P.O. Box 1165
Branson, MO 65615-1165
david@tracmaterials.com
Emily Toler Scott, Esq.
Office of the Solicitor
U.S. Department of Labor
Division of Mine Safety and Health
201 12th Street South, Suite 401
Arlington, VA 22202
scott.emily.t@dol.gov
April Nelson, Esq.
Associate Solicitor
Office of the Solicitor
U.S. Department of Labor
Division of Mine Safety and Health
201 12th Street South, Suite 401
Arlington, VA 22202
Nelson.April@dol.gov
Melanie Garris
Chief Office of Civil Penalty Compliance
U.S. Department of Labor
Office of Assessments
Mine Safety and Health Administration
201 12th Street South, Suite 401
Arlington, VA 22202
Garris.Melanie@dol.gov
Chief Administrative Law Judge Glynn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, NW, Suite 520 N
Washington, DC 20004-1710
GVoisin@fmshrc.gov

44 FMSHRC Page 535

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

August 3, 2022
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. LAKE 2020-0189-M
A.C. No. 11-00214-494016

CALLENDER CONSTRUCTION
COMPANY, INC.
BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C § 801
et seq. (2018) (“Mine Act”). On May 29, 2020, the Commission received from Callender
Construction Company, Inc. (“Callender”) 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).
The operator’s motion referenced the A.C. No. for the case as 11-00214-494016, and
requested to reopen the case to contest Citation Nos. 9387298, 93873971 and 9387296. It appears
that the operator has paid the outstanding civil penalties associated with the citations at issue.
We note that the Commission’s acknowledgement letter incorrectly listed the A.C. No. as
11-00214-498359. On June 3, 2020, the Commission received a response from the Secretary of
Labor stating that he does not oppose the motion to reopen, but the Secretary’s response
referenced the same A.C. number as the Commission’s May 29 acknowledgment letter and
addressed different citations from the operator.

1

The operator has listed this citation number incorrectly in its motion to reopen. The
correct citation number is 9387297.

44 FMSHRC Page 536

Since it appears the penalties at issue in this motion to reopen have already been paid,
the parties are hereby ORDERED TO SHOW CAUSE within 30 days of the date of this order
why this case, AC. No. 11-00214-494016, should not be dismissed.

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

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

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

44 FMSHRC Page 537

Distribution (by email):
Bruce Callender, President
Callender Construction Company, Inc.
928 West Washington Street
Pittsfield, IL 62363
calconst928@yahoo.com
Emily Toler Scott, Esq. Office of the Solicitor
U.S. Department of Labor
Division of Mine Safety and Health
201 12th Street South, Suite 401
Arlington, VA 22202
scott.emily.t@dol.gov
April Nelson, Esq., Associate Solicitor
Office of the Solicitor
U.S. Department of Labor
Division of Mine Safety and Health
201 12th Street South, Suite 401
Arlington, VA 22202
Nelson.April@dol.gov
Melanie Garris, Chief
Office of Civil Penalty Compliance
U.S. Department of Labor
Office of Assessments
Mine Safety and Health Administration
201 12th Street South, Suite 401
Arlington, VA 22202
Garris.Melanie@dol.gov
Chief Administrative Law Judge Glynn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, NW, Suite 520 N
Washington, DC 20004-1710
GVoisin@fmshrc.gov

44 FMSHRC Page 538

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

August 3, 2022
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. LAKE 2022-0069
A.C. No. 12-02049-542961

v.
HARRISON SAND & GRAVEL CO.,
INC.

Docket No. LAKE 2022-0070
A.C. No. 12-01151-542959

BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners
ORDER
BY THE COMMISSION:
These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”). On January 14, 2022, the Commission received from Harrison
Sand & Gravel Co., Inc. (“Harrison”) two motions seeking to reopen two 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 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).
1

For the limited purpose of addressing these motions to reopen, we hereby consolidate
docket numbers LAKE 2022-0069 and LAKE 2022-0070 because they involve similar factual
and procedural issues. 29 C.F.R. § 2700.12.

44 FMSHRC Page 539

Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that both proposed assessments were delivered on October 7, 2021, and
became final orders of the Commission on November 8, 2021. Harrison asserts that, on
approximately October 19, 2021, it mistakenly sent both its notices of contest and partial penalty
payments to the address for the payment of penalties, instead of correctly mailing the notices of
contest to a separate address, as required by MSHA. The Secretary does not oppose the requests
to reopen, but urges the operator to take steps to ensure that future penalty contests are timely
filed.
Having reviewed Harrison’s requests and the Secretary’s responses, we find that the
operator acted with excusable neglect by inadvertently mailing the notices of contest to the
wrong address, despite doing so in a timely manner. In the interest of justice, we hereby reopen
these matters and remand them 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 petitions for assessment of
penalties within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

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

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

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

44 FMSHRC Page 540

Distribution (by e-mail):
Kenneth Wanstrath, President
Harrison Sand & Gravel Co., Inc.
992 South County Road 800 East
Greensburg, IN 472408854
kenw@newpointstone.com
Emily Toler Scott, Esq.
Office of the Solicitor
U.S. Department of Labor
Division of Mine Safety and Health
201 12th Street South, Suite 401
Arlington, VA 22202
scott.emily.t@dol.gov
April Nelson, Esq. Associate Solicitor
Office of the Solicitor
U.S. Department of Labor
Division of Mine Safety and Health
201 12th Street South, Suite 401
Arlington, VA 22202
Nelson.April@dol.gov
Melanie Garris, Chief
Office of Civil Penalty Compliance
U.S. Department of Labor, Office of Assessments
Mine Safety and Health Administration
201 12th Street South, Suite 401
Arlington, VA 22202
Garris.Melanie@dol.gov
Chief Administrative Law Judge Glynn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, NW, Suite 520 N
Washington, DC 20004-1710
GVoisin@fmshrc.gov

44 FMSHRC Page 541

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

August 3, 2022
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. LAKE 2022-0071
A.C. No. 12-00038-541770
Docket No. LAKE 2022-0072
A.C. No. 12-00115-543456

NEW POINT STONE CO., INC.
BEFORE:

Traynor, Chair; Althen and Rajkovich, Commissioners
ORDER

BY THE COMMISSION:
These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”). On January 13, 2022, the Commission received from New
Point Stone Co., Inc. (“New Point”) 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). In addition, on January 14, 2022, the Commission received a second motion to reopen
from the same operator.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 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).
1

For the limited purpose of addressing these motions to reopen, we hereby consolidate
docket numbers LAKE 2022-0071 (involving the motion received on January 13, 2022) and
LAKE 2022-0072 (involving the motion received on January 14, 2022) because they involve
similar factual and procedural issues. 29 C.F.R. § 2700.12.

44 FMSHRC Page 542

Regarding LAKE 2022-0071, records of the Department of Labor’s Mine Safety and
Health Administration (“MSHA”) indicate that the proposed assessment was delivered on
September 17, 2021, and became a final order of the Commission on October 18, 2021. The
Secretary also provides a copy of a delinquency notice issued to the operator on December 28,
2021. New Point asserts that, on approximately September 30, 2021, it mistakenly sent both its
notice of contest and a partial penalty payment to the address for the payment of penalties,
instead of correctly mailing the notice of contest to a separate address, as required by MSHA.
Similarly, concerning LAKE 2022-0072, MSHA records indicate that the proposed assessment
was delivered on October 6, 2021, and became a final order of the Commission on November 5,
2021, and the operator makes the same assertion that, on approximately October 30, 2021, it
mistakenly sent its notice of contest to the wrong address. The Secretary does not oppose the
requests to reopen, but urges the operator to take steps to ensure that future penalty contests are
timely filed.
Having reviewed New Point’s requests and the Secretary’s responses, we find that the
operator acted with excusable neglect in both matters by inadvertently mailing the notices of
contest to the wrong address, despite doing so in a timely manner. In the interest of justice, we
hereby reopen these matters and remand them 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 petitions for assessment of
penalties within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

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

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

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

44 FMSHRC Page 543

Distribution (by email):
Kenneth Wanstrath, President
Harrison Sand & Gravel Co., Inc.
992 South County Road 800 East
Greensburg, IN 472408854
kenw@newpointstone.com
Emily Toler Scott, Esq.
Office of the Solicitor
U.S. Department of Labor
Division of Mine Safety and Health
201 12th Street South, Suite 401
Arlington, VA 22202
scott.emily.t@dol.gov
April Nelson, Esq. Associate Solicitor
Office of the Solicitor
U.S. Department of Labor
Division of Mine Safety and Health
201 12th Street South, Suite 401
Arlington, VA 22202
Nelson.April@dol.gov
Melanie Garris
Office of Civil Penalty Compliance
U.S. Department of Labor Office of Assessments
Mine Safety and Health Administration
201 12th Street South, Suite 401
Arlington, VA 22202
Garris.Melanie@dol.gov
Chief Administrative Law Judge Glynn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, NW, Suite 520 N
Washington, DC 20004-1710
GVoisin@fmshrc.gov

44 FMSHRC Page 544

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

August 3, 2022
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. WEST 2020-0401
A.C. No. 26-02142-513613

NEVADA READY MIX CORP
BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”). On August 26, 2020, the Commission received from Nevada
Ready Mix Corp (“Nevada”) 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 May 7, 2020, and became a
final order of the Commission on June 8, 2020. Nevada asserts that it had mistakenly marked the
contest form. Counsel for the operator noticed the mistake, and directed an assistant to correct
the form. However, the assistant failed to timely file a corrected contest form due in part to her

44 FMSHRC Page 545

remote work setting and the disruption in normal office procedures caused by the COVID-19
pandemic. 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 Nevada’s request and the Secretary’s response, we find that the failure
to timely file was the result of excusable neglect. 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/ Arthur R. Traynor, III
Arthur R. Traynor, III, Chair

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

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

44 FMSHRC Page 546

Distribution:
William K. Doran, Esq.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
1909 K Street, N.W., Suite 1000
Washington, DC 20006
william.doran@ogletreedeakins.com
Emily Toler Scott, Esq.
Office of the Solicitor
U.S. Department of Labor
Division of Mine Safety and Health
201 12th Street South, Suite 401
Arlington, VA 22202
scott.emily.t@dol.gov
April Nelson, Esq.
Associate Solicitor
Office of the Solicitor
U.S. Department of Labor
Division of Mine Safety and Health
201 12th Street South, Suite 401
Arlington, VA 22202
Nelson.April@dol.gov
Melanie Garris
Chief Office of Civil Penalty Compliance
U.S. Department of Labor
Office of Assessments
Mine Safety and Health Administration
201 12th Street South, Suite 401
Arlington, VA 22202
Garris.Melanie@dol.gov
Chief Administrative Law Judge Glynn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, NW, Suite 520 N
Washington, DC 20004-1710
GVoisin@fmshrc.gov

44 FMSHRC Page 547

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

August 5, 2022
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. YORK 2022-0003
A.C. No. 30-00026-541944

v.
COUNTY LINE STONE CO INC.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. PENN 2021-0108
A.C. No. 36-07416-539405

v.
CONSOL PENNSYLVANIA COAL
COMPANY LLC
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEVA 2022-0260
A.C. No. 46-09495-549775

v.
RAMACO RESOURCES, LLC

BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners
ORDER
BY THE COMMISSION:
These captioned cases arise under the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq. (2018) (“Mine Act”), and are currently before Administrative Law Judge
Michael G. Young. The Secretary of Labor has now filed a second Petition for Interlocutory
Review of these cases pursuant to Commission Procedural Rule 76(a)(1)(ii), 29 C.F.R. §
2700.76(a)(1)(ii) (“The Judge has denied a party’s motion for certification of the interlocutory
ruling to the Commission, and the party files with the Commission a petition for interlocutory
review within 30 days of the Judge’s denial of such motion for certification.”).1
On June 28, 2022, the Judge issued three separate orders, each denying the Secretary of
Labor’s respective motion for certification of an interlocutory ruling.
1

44 FMSHRC Page 548

The Commission denied the Secretary’s first Petition for Interlocutory Review, finding
that the Secretary’s petition was filed prematurely as the Judge had yet to issue an order either
granting or denying the subject motions to approve settlement.
Thereafter, the Secretary filed renewed motions with the Judge. On August 2, 2022, the
Judge issued three separate orders, each denying the Secretary’s renewed motions to approve
settlement and for certification of interlocutory review.
The Secretary’s motions to approve settlement were filed with the Judge in accordance
with section 110(k) of the Mine Act, 30 U.S.C. § 820(k).2 Each motion to approve settlement
contains a proposal to vacate one or more of the citations at issue. In consideration of the motion,
the Judge asked if the Secretary’s representative could attest that the decision to vacate any
citation was independent from, and not contingent upon, the compromise or settlement of other
citations in that case. Instead of providing the Judge with his requested assurance, the Secretary
filed motions for certification of interlocutory review with the Judge, requesting that the Judge
certify to the Commission the question of whether the Secretary has unreviewable discretion to
vacate a contested citation as part of a settlement.
As the Secretary’s petition recognizes, a similar controlling question of law is currently
on review before the Commission in Crimson Oak Grove Resources, SE 2021-0112, et al.
Specifically, in Crimson Oak, on March 2, 2022, the Commission granted interluctory review of
“the Judge’s orders denying the motions and the issue of whether section 110(k) of the Mine Act
authorizes review of the Secretary’s decision to vacate a citation in the context of a settlement,
when the vacatur is contingent upon the resolution of other citations.”
Commission Procedural Rule 76 provides that “the Commission, by a majority vote . . .
may grant interlocutory review upon a determination 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.” 29 C.F.R. § 2700.76(a)(2). Rule 76 further provides that
“[i]nterlocutory review by the Commission shall not be a matter of right but of the sound
discretion of the Commission.” 29 C.F.R. § 2700.76(a).
Upon consideration of the Secretary’s petition, we hereby grant review of the Judge’s
orders and the issue of whether section 110(k) of the Mine Act authorizes review of the
Secretary’s decision to vacate a citation in the context of a settlement, when the vacatur is
contingent upon the resolution of other citations.3

Section 110(k) of the Mine Act, 30 U.S.C. § 820(k), provides, in pertinent part, that “no
proposed penalty which has been contested before the Commission under section 105(a) shall be
compromised, mitigated, or settled except with the approval of the Commission.”
2

3

Pursuant to Commission Procedural Rule 12, 29 C.F.R. § 2700.12, we hereby
consolidate these three captioned proceedings: County Line Stone Co., Inc., YORK 2022-0003,
Consol Pennsylvania Coal Co., LLC, PENN 2021-0108, and Ramaco Resources, LLC, WEVA
2022-0260.

44 FMSHRC Page 549

The Secretary’s petition also contains an unopposed motion to hold the cases in
abeyance. We grant the Secretary’s motion in part and order all proceedings before the Judge to
be stayed pending futher order of the Commission. No hearing on these captioned matters shall
commence without further order of the Commission.
The Secretary shall file an opening brief with the Commission within 30 days of this
order. Any operator wishing to file a brief shall file that brief 30 days after the filing of the
Secretary’s brief.

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

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

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

44 FMSHRC Page 550

Distribution (by email):
Emily Toler-Scott, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Scott.emily.T@dol.gov
April Nelson, Esq. Associate Solicitor
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Nelson.April@dol.gov
Norman C. Ridley, CLR
U.S. Department of Labor, MSHA
Thorn Hill Industrial Park
178 Thorn Hill Road, Suite 100
Warrendale, PA 15086
Ridley.Norman@dol.gov
Douglas Sciotto, CLR
U.S. Department of Labor, MSHA
631 Excel Drive, Suite 100
Mt. Pleasant, PA 15666
Sciotto.Douglas@dol.gov
Chris A. Weaver, CLR
U.S. Department of Labor, MSHA
604 Cheat Road
Morgantown, WV 26508
Weaver.Chris@dol.gov
Paul T. Sharlow, Esq.
Sharlow Law Firm, P.C.
P.O. Box 641
Jamesville, NY 13078
psharlow@sharlowlaw.com
Craig Aaron
CONSOL Energy Inc.
10000 CONSOL Energy Drive, Suite 100
Canonsburg, PA 15317
craigaaron@consolenergy.com

44 FMSHRC Page 551

Jonathan R. Ellis, Esq.
Steptoe & Johnson PLLC
Chase Tower, Seventeenth Floor
P.O. Box 1588
Charleston, WV 25326
Jonathan.Ellis@steptoe-johnson.com
Colton C. Parsons, Esq.
Steptoe & Johnson PLLC
Chase Tower, Seventeenth Floor
P.O. Box 1588
Charleston, WV 25326
Colton.Parsons@steptoe-johnson.com
Administrative Law Judge Michael G. Young
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
myoung@fmshrc.gov
Chief Administrative Law Judge Glynn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Garris.Melanie@dol.gov

44 FMSHRC Page 552

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

August 22, 2022
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. CENT 2022-0135
A.C. No. 16-00970-549832

v.
MORTON SALT, INC.
BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”). On April 27, 2022, Morton Salt, Inc., filed a motion 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).
The Secretary of Labor states that the records of the Department of Labor’s Mine Safety
and Health Administration (“MSHA”) indicate that a proposed assessment was sent to the
operator on February 15, 2022, and was delivered on March 4, 2022, via U.S. Postal Service
Mail. The Secretary asserts that the proposed assessment became a final order of the
Commission on April 3, 2022, 30 days after its delivery.

44 FMSHRC Page 553

Morton Salt maintains that its failure to timely file was inadvertent. The operator’s health
and safety specialist was new to the position and attested that he was not familiar with the
penalty contest process. He explained that he believed that a contest did not need to be filed
because the citations were actively being conferenced and one was the subject of an ongoing
investigation. The Secretary does not oppose the motion to reopen.
Having reviewed Morton Salt’s request and the Secretary’s response, we find that the
operator’s failure to timely file was the result of inadvertence. We hereby reopen this matter, and
remand the case to the Chief Administrative Law Judge for further proceedings pursuant to the
Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent
with Rule 28, the Secretary shall file a petition for assessment of penalty within 45 days of the
date of this order. See 29 C.F.R. § 2700.28.

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

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

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

44 FMSHRC Page 554

Distribution:
Emily Toler-Scott, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Scott.Emily.T@dol.gov
April Nelson, Esq.
Associate Solicitor,
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Nelson.April@dol.gov
John M. McCracken, Esq.
Office of the Solicitor
Division of Mine Safety and Health
201 12th Street South, Suite 401
Arlington, VA 22202
McCracken.John.M@dol.gov
Chief Administrative Law Judge Glynn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Garris.Melanie@dol.gov
Donna Vetrano Pryor, Esq.
Husch Blackwell LLP
1801 Wewatta Street, Suite 1000
Denver, CO 80202
Donna.Pryor@huschblackwell.com

44 FMSHRC Page 555

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

August 22, 2022
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. CENT 2022-0184
A.C. No. 14-01622-550894

v.
BOB BERGKAMP CONSTRUCTION
COMPANY, INC.
BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”). On June 23, 2022, Bob Bergkamp Construction Company, Inc.,
filed a motion 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).
The Secretary of Labor states that the records of the Department of Labor’s Mine Safety
and Health Administration (“MSHA”) indicate that a proposed assessment was sent to the
operator on March 8, 2022, and was delivered on March 21, 2022, via U.S. Postal Service Mail.
The Secretary asserts that the proposed assessment became a final order of the Commission on

44 FMSHRC Page 556

April 20, 2022, 30 days after its delivery. The Secretary further asserts that MSHA issued a
delinquency notice to the operator on June 6, 2022.
Bob Bergkamp maintains that it attempted to timely file a contest of the proposed
penalties but mistakenly filed the notice with the Commission rather than with MSHA. The
operator attached a confirmation email from the Commission verifying it uploaded a document
to the Commission’s electronic case management system on March 29, 2022. The Secretary does
not oppose the operator’s request to reopen.
Having reviewed Bob Bergkamp’ s request and the Secretary’s response, we find that the
operator demonstrated that it failed to timely file because of a mistake. We hereby reopen this
matter, and remand the case to the Chief Administrative Law Judge for further proceedings
pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.
Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of penalty
within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

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

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

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

44 FMSHRC Page 557

Distribution:
Emily Toler-Scott, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Scott.Emily.T@dol.gov
April Nelson, Esq.
Associate Solicitor,
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Nelson.April@dol.gov
Chief Administrative Law Judge Glynn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Garris.Melanie@dol.gov
Morgan B. Koon, Esq.
Koon Law Firm
800 East 21st Street North
Witchita, Kansas
morgan@cornejocompanies.com
morgan@koonlawfirm.com

44 FMSHRC Page 558

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

August 22, 2022
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. LAKE 2022-0015
A.C. No. 11-02664-536307
Docket No. LAKE 2022-0016
A.C. No. 11-02664-538189

ICG ILLNOIS LLC

BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners
ORDER
BY THE COMMISSION:
These matters arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”). On October 20, 2021, the Commission received from ICG
Illinois LLC (“ICG”) a motion seeking to reopen two 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 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).

1

For the limited purpose of addressing these motions to reopen, we hereby consolidate
docket numbers LAKE 2022-0015 and LAKE 2022-0016 because they involve similar factual
and procedural issues. 29 C.F.R. § 2700.12.

44 FMSHRC Page 559

Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessments were delivered on June 18, 2021 and July 23,
2021, and became final orders of the Commission on July 19, 2021 and August 23, 2021,
repectively. ICG asserts that notice of its intentention to contest the citations was mistakenly sent
to MSHA’s lock box address in St. Louis, along with ICG’s payment for the uncontested
citations. The contest notice should have been separately sent to MSHA’s Arlington, Virginia
office. 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 ICG’s request and the Secretary’s response, we find that after a
delinquency notice was sent by MSHA, ICG acted promptly to determine the reason for such
notice. The operator made three calls to MSHA, the final one occurring on October 6, 2021.
After MSHA called back on October 7, 2021, and provided the operator with information
regarding where to file a Motion to Reopen, the Commission received ICG’s Motions 13 days
later. In the interest of justice, we hereby reopen these matters and remand them 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 petitions for assessment of penalty within 45 days of the date of this order.
See 29 C.F.R. § 2700.28.

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

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

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

44 FMSHRC Page 560

Distribution:
Emily Toler-Scott, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Scott.Emily.T@dol.gov
April Nelson, Esq.
Associate Solicitor,
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Nelson.April@dol.gov
Chief Administrative Law Judge Glynn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Garris.Melanie@dol.gov
Steve Benner
ICG Illinois LLC
5945 Lester Road
Williamsville, IL 62693
stevebenner@knighthawkcoal.com

44 FMSHRC Page 561

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

August 22, 2022
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. LAKE 2022-0059
A.C. No. 21-03404-531722

UNITED TACONITE LLC
BEFORE:

Traynor, Chair; Althen and Rajkovich, Commissioners
ORDER

BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”). On December 17, 2021, the Commission received from United
Taconite LLC (“United Taconite”) 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 29, 2021, and became
a final order of the Commission on April 28, 2021. United Taconite asserts that the paralegal
inadvertently deleted the filing deadline in this case, as a result of the operator receiving two
proposed assessments close in time. The paralegal confused the deadline in this case with the one

44 FMSHRC Page 562

she had already filed. 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 United Taconite’s request and the Secretary’s response, we find that
excusable neglect led to the missed deadline. Moreover, upon learning of its delinquency, the
operator conducted an investigation and filed the motion to reopen in a timely manner. 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/ Arthur R. Traynor, III
Arthur R. Traynor, III, Chair

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

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

44 FMSHRC Page 563

Distribution:
Emily Toler-Scott, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Scott.Emily.T@dol.gov
April Nelson, Esq.
Associate Solicitor,
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Nelson.April@dol.gov
Chief Administrative Law Judge Glynn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Garris.Melanie@dol.gov
Patrick W. Dennison, Esq.
Fisher & Phillips, LLP
Six PPG Place, Suite 830
Pittsburgh, PA 15222
pdennison@fisherphillips.com

44 FMSHRC Page 564

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

August 22, 2022
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. LAKE 2022-0098
A.C. No. 20-00051-545546

v.
LAFARGE HOLCIM
BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”). On March 7, 2022, LaFarge Holcim filed a motion 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).
The Secretary of Labor states that the records of the Department of Labor’s Mine Safety
and Health Administration (“MSHA”) indicate that a proposed assessment was sent to the
operator on November 17, 2021, and was delivered on December 3, 2021, via U.S. Postal
Service Mail. The Secretary received payment for one of the two citations at issue on December

44 FMSHRC Page 565

14, 2021. The Secretary asserts that the proposed assessment became a final order of the
Commission on January 2, 2022, 30 days after its delivery.
LaFarge Holcim maintains that it timely filed to contest Citation No. 9622263 at the time
it submitted payment for the second citation at issue. The operator states that it became aware of
the outstanding balance for Citation No. 9622263 on January 27, 2022, and thereafter sought to
reopen the final order.
Having reviewed LaFarge Holcim’s request and the Secretary’s response, we find that the
operator attempted to timely file to contest Citation No. 9622263 and MSHA’s non-receipt was
either inadvertent or the result of a mistake. We hereby reopen this matter, and remand the case
to the Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the
Secretary shall file a petition for assessment of penalty within 45 days of the date of this order.
See 29 C.F.R. § 2700.28.

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

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

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

44 FMSHRC Page 566

Distribution:
Emily Toler-Scott, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Scott.Emily.T@dol.gov
April Nelson, Esq.
Associate Solicitor,
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Nelson.April@dol.gov
John M. McCracken, Esq.
Office of the Solicitor
Division of Mine Safety and Health
201 12th Street South, Suite 401
Arlington, VA 22202
McCracken.John.M@dol.gov
Chief Administrative Law Judge Glynn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Garris.Melanie@dol.gov
Eric Friend
Plant Manager
Lafarge – Presque Isle Quarry
11351 East Grand Lake Road
Presque Isle, Michigan 49777
eric.friend@lafargeholcim.com

44 FMSHRC Page 567

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

August 22, 2022
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2020-0362
A.C. No. 45-02314-515508

v.
FARWEST PORTABLE CRUSHING,
INC.

BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”). On April 1, 2021, the Commission received from Farwest
Portable Crushing Inc. (“Farwest”) a motion seeking to reopen a penalty assessment proceeding
and relieve it from the Default Order entered against it.
On January 7, 2021, the Chief Administrative Law Judge issued an Order to Show Cause
in response to Farwest’s perceived failure to answer the Secretary of Labor’s August 30, 2020,
Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause was deemed a
Default Order on February 6, 2021, when it appeared that the operator had not responded to it
within 30 days.
Farwest asserts that it timely filed an Answer to the Secretary’s Petition. In support of
this assertion, Farwest submits a copy of a certified mail receipt, postmarked September 29,
2020, addressed to “MSHA Review Commission” at 1331 Pennsylvania Ave., N.W.
Washington, D.C. 20004-1710. The operator asserts further that it also responded to the Judge’s
January 7, 2021, Order to Show Cause by resubmitting its paperwork. To support this claim,
Farwest submits copies of a certified mail receipt postmarked January 22, 2021, addressed to
“MSHA” but sent to the Commission’s address, referenced above. Farwest explains that in both
cases it did not receive signature confirmation of receipt, but neither did it receive its envelope
back. The Secretary does not oppose the request to reopen.
The Judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R. §
2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a judge’s
decision may be sought by filing a petition for discretionary review within 30 days of its
issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not direct
review within 40 days of a decision’s issuance, it becomes a final decision of the Commission.

44 FMSHRC Page 568

30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here has become a final decision of the
Commission.
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”); Jim Walter Res., Inc.,
15 FMSHRC 782, 786-89 (May 1993). 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 will be permitted. See Coal
Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Farwest’s request and the Secretary’s response, we find that, although
Farwest did not achieve a successful delivery until April 1, 2021, the operator has submitted
documentation of its prior attempts to file timely responses to both the Secretary’s Petition and
the Judge’s show cause order. In the interest of justice, we hereby reopen the proceeding and
vacate the Default Order. Accordingly, this case is remanded to the Chief Administrative Law
Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules,
29 C.F.R. Part 2700.

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

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

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

44 FMSHRC Page 569

Distribution:
Emily Toler-Scott, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Scott.Emily.T@dol.gov
April Nelson, Esq.
Associate Solicitor,
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Nelson.April@dol.gov
Chief Administrative Law Judge Glynn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Garris.Melanie@dol.gov
Don T. Salka
Farwest Portable Crushing, Inc.
P.O. Box 1289
Gresham, OR 97030
Crusherman69@yahoo.com
Donald Horn
Conference Litigation Representative
991 Nut Tree Road
Vacaville, CA 95687
Horn.donald@dol.gov

44 FMSHRC Page 570

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

August 22, 2022
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEVA 2020-0476
A.C. No. 46-03085-510824

v.
KANAWHA EAGLE MINING, LLC
BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”). On July 20, 2020, Kanawha Eagle Mining, LLC, filed a motion
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).
The Secretary of Labor states that the records of the Department of Labor’s Mine Safety
and Health Administration (“MSHA”) indicate that a proposed assessment was sent to the
operator on March 17, 2020, and was delivered on April 15, 2020, via U.S. Postal Service Mail.
The Secretary asserts that the proposed assessment became a final order of the Commission on

44 FMSHRC Page 571

May 15, 2020, 30 days after its delivery. The Secretary sent the operator a delinquency notice on
June 30, 2020.
Kanawha Eagle asserts that it failed to timely contest the penalties at issue due to a
mistake. Specifically, its safety director attests that he mistakenly checked a box to contest one
citation ($123 penalty) on the assessment; he instead intended to check the box located just
below which would have indicated the operator’s intent to contest all the penalties at issue
($17,385). The safety director maintains that he timely mailed the notice of contest on April 17,
2020. The Secretary does not oppose the operator’s request to reopen.
Having reviewed Kanawha Eagle’s request and the Secretary’s response, we find that the
operator failed to timely contest all the penalties at issue due to a mistake. We hereby reopen this
matter, and remand the case to the Chief Administrative Law Judge for further proceedings
pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.
Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of penalty
within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

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

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

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

44 FMSHRC Page 572

Distribution:
Emily Toler-Scott, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Scott.Emily.T@dol.gov
April Nelson, Esq.
Associate Solicitor,
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Nelson.April@dol.gov
Chief Administrative Law Judge Glynn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Garris.Melanie@dol.gov
Jonathan R. Ellis, Esq.
Colton C. Parsons, Esq.
707 Virginia Street, East, Seventeenth Floor
P.O. Box 1588
Charleston, WV 25326
Jonathan.Ellis@steptoe-johnson.com
Colton.Parsons@steptoe-johnson.com

44 FMSHRC Page 573

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

August 22, 2022
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. WEVA 2021-0259
A.C. No. 46-09207-527987

HARMAN BRANCH MINING INC.
BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”). On April 9, 2021, the Commission received from Harman
Branch Mining Company (“Harman”) 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 11, 2021, and
became a final order of the Commission on February 10, 2021. Harman asserts that its
representative prepared a notice of contest and placed it in the U.S. mail for delivery on January
12, 2021 and attributes any resulting error to the pandemic causing an unprecedented change in

44 FMSHRC Page 574

how businesses operate, including MSHA and the U.S. Mail. 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 Harman’s request and the Secretary’s response, we find that excusable
neglect, possibly resulting in part from changes necessitated by the pandemic in that Harman’s
representative contends he timely mailed the notice of contest and that subsequent delay in
processing the document was likely the result of the pandemic. Furthermore, after learning of the
delinquency, the operator did not unduly delay in filing its motion to reopen. 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/ Arthur R. Traynor, III
Arthur R. Traynor, III, Chair

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

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

44 FMSHRC Page 575

Distribution:
Emily Toler-Scott, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Scott.Emily.T@dol.gov
April Nelson, Esq.
Associate Solicitor,
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Nelson.April@dol.gov
Chief Administrative Law Judge Glynn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Garris.Melanie@dol.gov
James Bowman
P.O. Box 99
Midway, WV 25878
Jimbowman61@hotmail.com

44 FMSHRC Page 576

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

August 24, 2022
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. CENT 2022-0145
A.C. No. 23-02513-548052

v.
LIBERTY AGGREGATES LLC
BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”). On May 4, 2022, Liberty Aggregates, LLC, filed a motion 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).
The Secretary of Labor states that records of the Department of Labor’s Mine Safety and
Health Administration (“MSHA”) indicate that a proposed assessment was sent to the operator
on January 4, 2022, and was delivered on January 18, 2022. The Secretary asserts that the
assessment became a final order on February 17, 2022, 30 days after its delivery. On March 4,
2022, MSHA received partial payment toward one of the four citations at issue in the

44 FMSHRC Page 577

assessment. On April 5, 2022, MSHA sent the operator a delinquency notice for the remaining
amount.
Liberty Aggregates states that during January and February 2022, it made multiple
attempts to contact the local MSHA field office and the MSHA national office to understand the
basis for the large penalty assessment. On March 24, 2022, it discovered that the subject citations
were listed as delinquent on MSHA’s website. Shortly thereafter, the operator contacted counsel
and filed the subject motion to reopen. Liberty Aggregates asserts that its failure to timely
contest the penalty assessment was inadvertent. The Secretary does not oppose the motion to
reopen.
Having reviewed Liberty Aggregate’s request and the Secretary’s response, we find the
operator’s failure to timely contest the proposed assessment was inadvertent. We hereby reopen
this matter, and remand the case to the Chief Administrative Law Judge for further proceedings
pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.
Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of penalty
within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

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

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

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

44 FMSHRC Page 578

Distribution:
Emily Toler-Scott, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Scott.Emily.T@dol.gov
April Nelson, Esq.
Associate Solicitor,
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Nelson.April@dol.gov
Chief Administrative Law Judge Glynn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Garris.Melanie@dol.gov
Erik Dullea, Esq.
Donna Vetrano Pryor, Esq.
Kayla Loveless, Esq.
Husch Blackwell LLP
1801 Wewatta Street, Suite 1000
Denver, CO 80202
Erik.Dullea@huschblackwell.com
Donna.Pryor@huschblackwell.com
Kayla.Loveless@huschblackwell.com

44 FMSHRC Page 579

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

August 24, 2022
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. SE 2022-0118
A.C. No. 40-00864-551693

v.
NYRSTAR TENNESSE MINES
GORDONSVILLE, LLC
BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”). On May 19, 2022, Nyrstar Tennessee Mines Gordonsville,
LLC, filed a motion to reopen a penalty assessment that it previously paid.
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).
The Secretary of Labor reports that on April 12, 2022, the Department of Labor’s Mine
Safety and Health Administration (“MSHA”) timely received full payment ($12,297) for the
penalties associated with the 24 citations at issue.
Nyrstar asserts that its failure to contest the penalties was a mistake. Along with the
motion to reopen, Nyrstar attached an affidavit from a superintendent stating that he did not

44 FMSHRC Page 580

timely contest the penalties because he believed that the operator and MSHA had reached an
agreement on the abatement of each violation at issue. However, no agreement was ultimately
reached. As the Secretary acknowledges, as of the time of filing, the parties have still not yet
reached an agreement to terminate the citations. The Secretary does not oppose the motion to
reopen, noting that reopening will allow the parties to contest citations before the Commission if
they are not able to resolve the outstanding issues.
Having reviewed Nyrstar’s request and the Secretary’s response, we find that the
operator’s failure to timely file was the result of a mistake. We hereby reopen this matter, and
remand the case to the Chief Administrative Law Judge for further proceedings pursuant to the
Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent
with Rule 28, the Secretary shall file a petition for assessment of penalty within 45 days of the
date of this order. See 29 C.F.R. § 2700.28.

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

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

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

44 FMSHRC Page 581

Distribution:
Emily Toler-Scott, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Scott.Emily.T@dol.gov
April Nelson, Esq.
Associate Solicitor,
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Nelson.April@dol.gov
Chief Administrative Law Judge Glynn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Garris.Melanie@dol.gov
Donna Vetrano Pryor, Esq.
Husch Blackwell LLP
1801 Wewatta Street, Suite 1000
Denver, CO 80202
Donna.Pryor@huschblackwell.com

44 FMSHRC Page 582

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

August 24, 2022
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. WEST 2022-0199
A.C. No. 26-00002-537140
Docket No. WEST 2022-0200
A.C. No. 26-00002-538815

PREMIER MAGNESIA LLC
BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners
ORDER
BY THE COMMISSION:
These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”).1 On April 7, 2021, the Commission received two motions from
Premier Magnesia, LLC, seeking to reopen 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).
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).
The Secretary of Labor states that the Department of Labor’s Mine Safety and Health
Administration (“MSHA”) mailed the proposed assessments to the operator via U.S. Postal
1

For the limited purpose of addressing these motions to reopen, we hereby consolidate
Docket Numbers WEST 2022-0199 and WEST 2022-0200 because they involve similar factual
and procedural issues. 29 C.F.R. § 2700.12.

44 FMSHRC Page 583

Service Mail. The Secretary contends that the proposed assessment associated with Docket No.
WEST 2022-0199 was mailed on June 17, 2021, and was delivered on July 18, 2021; the
assessment associated with Docket No. WEST 2022-0200 was mailed on July 15, 2021, and was
delivered on August 21, 2021.
The Secretary contends that the proposed assessment in Docket No. WEST 2022-0199
became a final order of the Commission on August 17, 2021, 30 days after its delivery. The
proposed assessment in Docket No. WEST 2022-0200 became a final order of the Commission
on September 20, 2021, 30 days after its delivery.
Premier Magnesia asserts that the proposed assessments were not timely contested as a
result of inadvertence and due to employee turn-over in its safety department. The new safety
manager became aware of the delinquent penalties after reviewing the operator’s violation
history on MSHA’s website. The safety manager attests that he has been unable to locate the
paperwork for the proposed assessments. The Secretary of Labor does not oppose the motions to
reopen.
Having reviewed the operator’s request and the Secretary’s response, we find that the
operator’s failure to timely contest the proposed assessments was inadvertent. We hereby reopen
these matters, and remand the cases to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part
2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of
penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

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

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

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

44 FMSHRC Page 584

Distribution:
Emily Toler-Scott, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Scott.Emily.T@dol.gov
April Nelson, Esq.
Associate Solicitor,
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Nelson.April@dol.gov
Chief Administrative Law Judge Glynn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Garris.Melanie@dol.gov
William K. Doran, Esq.
Ogletree, Deakins, Nash,
Smoak & Stewart, P.C.
1909 K Street, NW, Suite 1000
Washington, DC 20006
William.doran@ogletreedeakins.com

44 FMSHRC Page 585

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

August 25, 2022
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. PENN 2022-0083

v.
CONSOL PENNSYLVANIA COAL
COMPANY, LLC
BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners
ORDER
BY THE COMMISSION:
This case arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”). On May 25, 2022, the Commission received from Consol
Pennsylvania Coal Company, LLC a motion seeking to permit late filing to contest an order
issued pursuant to section 107(a) of the Mine Act, 30 U.S.C. § 817(a), and a motion to reopen
final orders of the Commission pursuant to section 105(a) of the Act, 30 U.S.C. § 815(a).
Under section 107(e)(1) of the Mine Act, an operator who wishes to contest an order
issued pursuant to section 107(a) may request review by the Commission no later than 30 days
after being notified of such order. 30 U.S.C. § 817(e)(1). Commission Procedural Rule 9
allows the Commission to extend the filing time for a document for good cause shown. 29
C.F.R. § 2700.9(a). The rule allows the Commission to grant motions for extensions of time
after the designated filing time has expired if the party requesting the extension can show, in
writing, the reasons for its failure to make the request before the filing deadline. 29 C.F.R. §
2700.9(b).
Relying on Rule 60(b) of the Federal Rules of Civil Procedure, we have 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, appropriate proceedings on the merits may be permitted. See
Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). We find that the same
considerations apply to the order here under Commission Procedural Rule 9. See e.g., Jones
Bros MFG, Inc., 38 FMSHRC 234, 235 (Feb. 2016).
The subject section 107(a) order, Order No. 9204789, was issued on February 9, 2022.
The deadline for contesting the order pursuant to section 107(e)(1) was March 11, 2022.
Consol states that it neglected to timely file a contest to the order with the Commission because
it instead was attempting to meet with Mine Safety and Health Administration (“MSHA”)
officials to resolve the matter. The Secretary does not oppose Consol’s motion to permit late

44 FMSHRC Page 586

filing. However, the Secretary notes that Consol is a large operator, familiar with the
Commission’s procedural rules, and Consol’s motion neither provides an explanation as to
why it did not file a timely contest with the Commission, nor is the motion accompanied by a
declaration.
Consol also moves to reopen Citation Nos. 9204790, 9204791 and 9204793. The
Commission possesses 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 on the basis of mistake, inadvertence, excusable neglect,
or other reason justifying relief. 29 C.F.R. § 2700.1(b) (“the Commission . . . shall be guided
so far as practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787.
Of the three citations, only Citation No. 9204793 has become a final order of the
Commission.1 Consol originally did not contest the penalty for Citation No. 9204793 in
proposed assessment number 000552311. Instead, Consol timely paid the full $133 civil
penalty for Citation No. 9204793. Consol did however timely contest ten other citations that
were included within proposed assessment number 000552311, and those ten contested
citations are now before a Commission Administrative Law Judge in Docket No. PENN 20220069. Nevertheless, the Secretary does not oppose Consol’s motion to reopen the citation.
Accordingly, in the interests of justice, we hereby remand Consol’s motion to permit
late filing to the Chief Administrative Law Judge for a determination of whether good cause
exists for the operator’s failure to timely contest Order No. 9204789 with the Commission. In
addition, we also remand Consol’s motion to reopen Citation No. 9204793 to the Chief Judge

1

Citation No. 9204790 has not yet been assessed a civil penalty (www.msha.gov/minedata-retrieval-system, last visited August 23, 2022). Consol may obtain Commission review of
the citation by contesting the proposed penalty after it is assessed. Furthermore, Citation No.
9204791 was timely contested by Consol and is currently before a Commission Administrative
Law Judge in Docket No. PENN 2022-0112.

44 FMSHRC Page 587

for a determination of whether good cause exists for the operator’s failure to timely contest the
proposed assessment.

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

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

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

44 FMSHRC Page 588

Distribution:
Emily Toler-Scott, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Scott.Emily.T@dol.gov
April Nelson, Esq.
Associate Solicitor,
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Nelson.April@dol.gov
Chief Administrative Law Judge Glynn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Garris.Melanie@dol.gov
Rebecca J. Oblak, Esq.
OBLAK LAW, PLLC
1124 Queens’s Court
Morgantown, WV 26508
roblak@oblaklaw.com

44 FMSHRC Page 589

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

August 26, 2022
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. CENT 2022-0012
A.C. No. 23-02077-540128

WASHINGTON COUNTY
AGGREGATES, INC.
BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”). On October 12, 2021, the Commission received from
Washington County Aggregates, Inc. (“Washington County”) 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 August 16, 2021 and became
a final order of the Commission on September 15, 2021. Washington County asserts that it

44 FMSHRC Page 590

mistakenly believed that its written request for a safety and health conference with the MSHA
district office started the process of contesting citations, and that it would be notified in writing if
its request was granted or not. Furthermore, shortly after the penalty assessments were delivered
the mine owner, and subsequently certain administrative staff, came down with Covid,
preventing Washington County from timely filing a contest of the proposed penalties. 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 Washington County’s request and the Secretary’s response, we find that
the operator acted with excusable neglect in failing to timely file a contest of the proposed
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/ Arthur R. Traynor, III
Arthur R. Traynor, III, Chair

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

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

44 FMSHRC Page 591

Distribution:
Josh Schultz, Esq.
Law Office of Adele L. Abrams, P.C.
600 17th St. #2800 South
Denver, CO 80202
jsschultz@aabramslaw.com
Emily Toler-Scott, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Scott.Emily.T@dol.gov
April Nelson, Esq.
Associate Solicitor,
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Nelson.April@dol.gov
Chief Administrative Law Judge Glynn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Garris.Melanie@dol.gov

44 FMSHRC Page 592

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

August 26, 2022
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. SE 2021-0194
A.C. No. 22-00650-542085

GREEN BROTHERS GRAVEL
COMPANY, INC.
BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”). On March 30, 2022, the Commission received from Green
Brothers Gravel Company, Inc. (“Green Bros.”) a motion seeking to reopen a penalty assessment
proceeding and relieve it from the Default Order entered against it.
On December 21, 2021, the Chief Administrative Law Judge issued an Order to Show
Cause in response to Green Bros.’ perceived failure to answer the Secretary of Labor’s October
21, 2021 Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause was
deemed a Default Order on January 20, 2022, when it appeared that the operator had not filed an
answer within 30 days.
Green Bros. asserts that, due to servicing rules in place during the COVID-19 pandemic,
MSHA’s petition for Assessment of Civil Penalty was not mailed to the operator but was instead
served by email. Due to a clerical oversight, counsel for Green Bros.’ email address contained a
typographical error and, as a result, Green Bros. maintains that it did not receive a copy of the
Assessment or the Chief Judge’s subsequent Order to Show Cause and Order of Default. The
Secretary does not oppose the request to reopen.
The Judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R. §
2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a judge’s
decision may be sought by filing a petition for discretionary review within 30 days of its
issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not direct
review within 40 days of a decision’s issuance, it becomes a final decision of the Commission.
30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here has become a final decision of the
Commission.

44 FMSHRC Page 593

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”); Jim Walter Res., Inc.,
15 FMSHRC 782, 786-89 (May 1993). 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 will be permitted. See Coal
Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Green Bros.’ request and the Secretary’s response, we find that the
failure to respond was due to a clerical error and that the operator promptly moved to reopen the
case upon discovering the mistake. In the interest of justice, we hereby reopen the proceeding
and vacate the Default Order. Accordingly, this case is remanded to the Chief Administrative
Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural
Rules, 29 C.F.R. Part 2700.

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

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

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

44 FMSHRC Page 594

Distribution:
Josh Bernstein
United States Department of Labor
Office of the Solicitor
525 S. Griffin Street, Suite 501
Dallas, Texas 75202
bernstein.josh@dol.gov
docket.dallas@dol.gov
Sarah G. Korwan
Law Office of Adele L. Abrams, P.C.
1045 Bridge Rd.
Charleston, WV 25314
skorwan@aabramslaw.com
Adele L. Abrams
Law Office of Adele L. Abrams, P.C.
1045 Bridge Rd.
Charleston, WV 25314
safetylawyer@gmail.com
Emily Toler-Scott, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Scott.Emily.T@dol.gov
April Nelson, Esq.
Associate Solicitor,
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Nelson.April@dol.gov
Chief Administrative Law Judge Glynn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration

44 FMSHRC Page 595

U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Garris.Melanie@dol.gov

44 FMSHRC Page 596

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

August 29, 2022
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2021-0168
A.C. No. 41-04914-515484

v.
ESPINOZA STONE, INC.

BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners
ORDER
BY: Althen and Rajkovich, Commissioners
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”). On June 21, 2021, the Commission received from Espinoza
Stone, Inc. (“Espinoza”) 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 12, 2020, and became a
final order of the Commission on July 13, 2020. Espinoza asserts that its failure to timely contest
the proposed assessments was the result of the unprecedented strain caused by the Covid 19
pandemic. The operator contends it did not discover its failure to contest until June 1, 2021, and

44 FMSHRC Page 597

that it has put processes in place that allow the Company to handle the administrative tasks
required. 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 Espinoza’s request and the Secretary’s response, we find that the
operator’s failure to timely contest the proposed penalties was excusable neglect, resulting from
the unprecedented strain of the Covid 19 pandemic. After discovering its mistake, Espinoza filed
a motion to reopen 20 days later. 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/ William I. Althen
William I. Althen, Commissioner

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

44 FMSHRC Page 598

Chair Traynor, dissenting:
I dissent from my colleagues’ decision that Espinoza Stone demonstrated its failure to
timely contest the proposed penalties was the result of excusable neglect resulting from the strain
of the Covid-19 pandemic. The operator’s filing does not support this conclusion. It provides no
specific details concerning the facts and circumstances of its failure to timely contest. There is no
declaration from a responsible party. There is nothing more than an unsupported assertion that its
failure to timely contest was caused by the pandemic.
Espinoza Stone routinely defaults on penalties. Proposed Assessment No. 000515484
states that the operator had unpaid balances in separate cases (000506852 dated 01/02/2020 and
000496409 dated 07/31/2019). Each of these prior assessments were issued months before the
widespread disruptions caused by the pandemic. The prior defaults undermine the assertion that
the current default was the result of a single lapse. Accordingly, the operator has not satisfied its
burden to demonstrate that its failure to contest the subject assessment was the result of
excusable neglect.1
In addition, the motion to reopen was filed just shy of the one-year limitation period we
apply to such motions.2 Espinoza Stone does not explain why 343 days passed before it filed the
instant motion to reopen. Its motion merely states that it discovered its failure to contest the
proposed penalties 20 days prior to filing its motion. The motion neither provides an explanation
of how the lapse was discovered, nor addresses the operator’s conduct in the intervening period
between final order and discovery of the problem. In particular, the operator does not address the
separate notice of delinquency issued by the Mine Safety and Health Administration on August
27, 2020.
For these reasons, I find that Espinoza Stone has not demonstrated that its failure to
timely file was the result of excusable neglect in this case. See E & G Masonry Stone No. 2, 36
FMSHRC 5 (Jan. 2014) (“Due to the extraordinary nature of reopening a penalty that has
become final, the operator has the burden of showing that it should be granted such relief

1

It is well established 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).
2

Pursuant to Rule 60(c)(1) of the Federal Rules of Civil Procedure, a motion under Rule
60(b) “must be made within a reasonable time - and for reasons (1), (2), and (3) no more than a
year after the entry of the judgment or order or the date of the proceeding.”

44 FMSHRC Page 599

through a detailed explanation of its failure to timely contest the penalty and any delays in filing
for reopening.”).

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Chair
Distribution:
Albert J. Carillo
Compliance Manager
Espinoza Stone, Inc.
34035 Ronald W. Reagan Blvd.
Georgetown, TX 78633
albert@espinozastone.com
Emily Toler-Scott, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Scott.Emily.T@dol.gov
April Nelson, Esq.
Associate Solicitor,
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Nelson.April@dol.gov
Chief Administrative Law Judge Glynn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Garris.Melanie@dol.gov

44 FMSHRC Page 600

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9933/ Fax 202-434-9949

August 17, 2022
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 2022-0040
A.C. No. 15-19702-549694

v.
COVOL FUELS NO.3 LLC,
Respondent

Mine: Straight Creek Mine

DECISION DENYING MOTION TO APPROVE SETTLEMENT
Before: Judge 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. The Secretary has filed the
Motion to Approve Settlement of the citation involved in this matter. The parties move to
modify the citation, as stated below. The penalty would be reduced by 78%, from the original
assessed amount of $3,546.00 to $796.00. As the Motion does not meet the Commission’s
requirements for approval of settlements, per its decisions in The American Coal Co., 40
FMSHRC 983 (Aug. 2018) (“AmCoal”) and Rockwell Mining, LLC, 40 FMSHRC 994 (Aug.
2018), the Motion is DENIED.
Citation
Number
9233080

Proposed
Penalty
$3,546.00

Settlement
Amount
$796.00

Totals

$3,546.00

$796.00

Modification
Reduction in the
likelihood of
occurrence from
“Occurred” to
“Reasonably
Likely”
Seventy-Eight
(78%) Percent
Penalty
Reduction

Citation No. 9233080 was issued on December 16, 2021 for a violation of 30 C.F.R.
§75.202(a). Titled “Protection from falls of roof, face and ribs,” the standard specifies that “[t]he
roof, face and ribs of areas where persons work or travel shall be supported or otherwise

44 FMSHRC Page 601

controlled to protect persons from hazards related to falls of the roof, face or ribs and coal or
rock bursts.” 30 C.F.R. §75.202(a).
The citation read:
The mine operator is not fully controlling the mine roof to protect person from falls
of the roof. When checked the mine roof has collapsed between the crosscuts 20
and 21 along the# 6 entry of the primary escapeway. This roof fall is approximately
20 feet in width and 35 feet in length and 9 feet in thickness. This citation is being
issued in conjunction with 103k order# 9233079.
Standard 75.202(a) was cited 4 times in two years at mine 1519702 (4 to the
operator, 0 to a contractor).
Pet. for a Civil Penalty at 16.
For the gravity of the violation, the likelihood of injury or illness was marked by the
inspector in his evaluation to have “occurred,” with the injury or illness reasonably expected to
be “fatal,” affecting one person. Id. The violation was found to be significant and substantial. Id.
Negligence was found to be moderate. Id. A 103(k) Order, No. 9233079, was not included in
the record, nor was the abatement document for the violation. The latter action to terminate was
due four days after the issuance of the citation, on December 20, 2021. Id. Both these
documents are essential for the Court to make an informed review of the Motion, per section
110(k) of the Act.
The Secretary moves to modify the citation, changing the likelihood from “occurred” to
“reasonably likely,” supplying the following in support:
Basis of compromise: A reduction in the likelihood of an injury or illness to occur.
There are factual disputes regarding the likelihood of an injury producing event.
The Respondent asserts it was unlikely for an accident to occur that would result in
any illness or injuries. The Respondent argues that no injury or illness occurred as
a result of the cited condition. The Respondent further argues that the unplanned
roof fall was in an area where miners do not normally work or travel, that no one
was working at the time the unplanned fall occurred and that page 2-3, of PH20-I3, MSHA Citation and Order Writing Handbook, clearly states that occurred can
only be checked when an injury or illness has actually occurred. Therefore, the
Respondent concludes it was unlikely for an accident to occur that would result in
any illness or injury given the aforementioned facts. For the purpose of settlement,
the Petitioner proposes, and the Respondent accepts a reduction in the likelihood of
occurrence from “Occurred” to “Reasonably Likely”. The parties have discussed

44 FMSHRC Page 602

the citation and propose a revised penalty of $796.00, which is consistent with the
penalty table found in Part 100, 30CFR.
Mot. to Approve Settlement at 3.
Analysis
This case presents a most unusual assertion. To begin, one must first comprehend the
enormity of the roof fall – a roof collapse in the primary escapeway which was approximately 20
feet in width, 35 feet in length, and 9 feet in thickness. These figures evince the enormously large
roof fall. A fraction of that fall of roof would’ve killed anyone who happened to be at that location
when it occurred.
The Motion seeks to reduce the inspector’s gravity evaluation down from “Occurred,”
bypassing “Highly Likely,” and arriving at “Reasonably Likely,” as the designation. The
Respondent presents two arguments in support of reducing the penalty by 78% from $3,546.00
to what the Court views as a non-incentivizing penalty amount at $796.00. One argument is that
it was unlikely for an accident to occur that would result in any illness or injuries. This
contention rests upon the fact that that the fall occurred in an area where miners do not normally
work or travel, and that no one was working at the time the unplanned fall. The second
argument is that MSHA can’t designate a violation as “Occurred” unless an injury or illness
“actually occurred.” The Motion claims there are “factual disputes regarding the likelihood of
an injury producing event,” even though Respondent’s arguments are not factual disputes but
rather disagreement as to the legal interpretation of the facts. Neither argument supports the
“Reasonably Likely” gravity designation.
The first contention – that the fall was in an area where miners do not normally work or
travel, and that no one was working at the time the unplanned fall, runs afoul of well-established
case law that a violation must be considered in the context of continued normal mining
operations. An evaluation of the reasonable likelihood of injury should be made assuming
continued normal mining operations. See U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug.
1985). “[T]he gravity determination requires a predictive inquiry into whether the violation is
reasonably likely to result in a reasonably serious injury, see Secretary of Labor v. Mathies Coal
Co., 6 FMSHRC 1, 3–4 (Jan. 1984), a prediction which may assume ‘continued normal mining
operations,’ U.S. Steel Mining Co., 6 FMSHRC at 1574.” Rex Coal Co., v. Sec’y of Lab., Mine
Safety & Health Admin., 630 F. App’x, 359, 363 (6th Cir. 2015). “An S&S determination must
be made at the time the citation is issued ‘without any assumptions as to abatement’ and in the
context of ‘continued normal mining operations.’ Paramont Coal Co., 37 FMSRHC 981, 985
(May 2015).” Mach Mining, 40 FMSHRC 1, 6 (Jan. 2018).
As to the second argument, that the Secretary may not designate a violation as
“occurred,” under these circumstances, the Respondent looks to MSHA’s Citation and Order
Writing Handbook. U.S. Dep’t of Lab., Mine Safety and Health Admin., Citation and Order
Writing Handbook, PH20-I-3 (Dec. 2020). (Handbook). It is true that the Handbook states that
“occurred” can only be checked when an injury or illness has actually occurred. Handboo
PH20-I-3 at page 2-3. Since no injury or illness actually occurred as a result of the cited

44 FMSHRC Page 603

condition, Respondent asserts that gravity box designation may not be checked. Instead, the
Secretary and Respondent agree to reclassify the gravity as “reasonably likely” to occur.
However, this rationale doesn’t square with the requirement of the cited standard, 30
C.F.R. §75.202(a), which specifies that “[t]he roof, face and ribs of areas where persons work or
travel shall be supported or otherwise controlled to protect persons from hazards related to falls
of the roof, face or ribs and coal or rock bursts.” Clearly, and with a staggeringly large failure,
the roof in this instance was not supported or otherwise controlled, and in that safety-enforcing
sense, the gravity occurred. The gravity of the violation should not turn on whether the mine
operator had the sheer luck of no miner being at that location at that moment of inundation. If that
were the test, the agreement of the parties to designate the gravity as ‘reasonably likely’ would
not make sense either – no one was injured when the collapse occurred, so following the line of
reasoning regarding ‘occurred,’ it was not ‘reasonably likely’ either and by that thinking ‘no
likelihood’ should have been the designation.
The Respondent’s unusual line of reasoning has been rejected. See, e.g., Clintwood
Elkhorn Mining Co., 38 FMSHRC 458, 466 (Mar. 2016) (ALJ), upholding the inspector’s
determination an injury reasonably expected to be “fatal” and “occurred” when a miner received
abrasions and bruising in a runaway truck accident. The inspector “designated the injury as
reasonably expected to result in a fatality because this type of accident -- a runaway truck -- could
have resulted, and had resulted, in fatalities in the past.” Id.
“As a general proposition, rules of statutory construction can be employed in the
interpretation of administrative regulations. See C. D. Sands, 1A Sutherland Statutory
Construction, § 31.06, p. 362 (1972). According to 2 Am. Jur. 2d, Administrative Law, § 307
(1962), ‘rules made in the exercise of a power delegated by statute should be construed together
with the statute to make, if possible, an effectual piece of legislation in harmony with common
sense and sound reason.’” Golden R Coal Co., 2 FMSHRC 446, 448-49 (Feb. 1980) (ALJ)
“It is also an established canon of statutory construction that a legislature’s words should never
be given a meaning that produces a stunningly counterintuitive result—at least if those words,
read without undue straining, will bear another, less jarring meaning.”
United States v. O’Neil, 11 F.3d 292, 297 (1st Cir. 1993). The principle is that statutes should not
be read to produce illogical results which are at odds with the statute’s underlying purposes.
Consolidation Coal Co., 14 FMSHRC 956, 963 (June 1992). In the Court’s view, the
construction urged by the Respondent produces such illogical results.
Further, the MSHA Handbook on Citation and Order Writing represents internal agency
guidance and policy directives that are not binding on the Secretary in his enforcement actions.
See, e.g., Mingo Logan Coal Co., 19 FMSHRC 246, 250 (1997), aff'd Mingo Logan Coal Co. v.
Sec'y of Labor, 133 F.3d 916, *3 (4th Cir. 1988). The standard takes precedence over the
Handbook, so in determining likelihood, the relevant event is not the injury itself but the
potentially injurious event that the standard exists to prevent, here, a massive roof collapse.
In addition, the Handbook is in tension with the wording of 30 C.F.R. §100.3(e), which
specifies that “Gravity is determined by the likelihood of the occurrence of the event against

44 FMSHRC Page 604

which a standard is directed.” (emphasis added). The event against which 30 C.F.R. §75.202(a)
is directed – “falls of the roof, face or ribs and coal or rock bursts,” – did occur, even though no
miner was injured by the fall. The standard takes precedence over the Handbook, so in
determining likelihood, the relevant event is not the injury itself but the potentially injurious event
that the standard exists to prevent, a roof collapse which in this instance would clearly be fatal.
That the mine operator should be able to have a 78% reduction in the penalty assessed
resting entirely that no one died is repugnant to the overarching principles of the Mine Act and
the Secretary’s duty to take care of the safety and health of our Nation’s miners. Permitting
Respondent to avoid the higher penalty amount for the roof fall because no miners were actually
injured also frustrates the deterrent aims of the civil penalty system. One of Congress’ central
goals for the Mine Act’s civil penalty scheme was to ensure “effective and meaningful
compliance” by imposing penalties “of an amount which is sufficient to make it more
economical for an operator to comply with the Act’s requirements than it is to pay the penalties
assessed and continue to operate while not in compliance.”1 In the Court’s view, the $796.00
hand slap does not accomplish Congress’ goal.
Beyond the remarks above, the Motion does not meet the Commission’s test for review
of settlements because, even under its nonintuitive definition of ‘facts,’ the motion is deficient.
This is because, at bottom, the Respondent is making a legal, not a factual, argument, about the
proper evaluation of the gravity of the violation. The first two elements of the Commission’s test
for review of settlements are always present, because without them no motion could be
presented. Those are: the amount of the penalty proposed by the Secretary, and the amount of the
penalty agreed to in settlement. Because no agreed-upon ‘facts’ have been offered, but rather
only the legal argument that one cannot designate the injury as ‘occurred’ unless there has been
an injury, the Motion is deficient.
There are other issues with the settlement motion. The citation was issued in conjunction
with a 103k order, Number 9233079. In carrying out its responsibilities under Section 110(k) the
Court should be able to view this relevant document. In addition, the official record does not
include the termination document associated with the citation. Both documents constitute part of
the official record for this matter, and even under the Court’s limited purview, it should be able
to view these essential parts of the record. They are to be part of the public record, not hidden
from view.
Respondent’s claims about miners’ absence in the area – no miners were working in the
area at the time of the roof fall, and miners do not typically work or travel in the area where the
roof fall occurred – amount to an ersatz “redundant safety measures” argument, rejected by

1

S. Rep. 95-181, 41 (1977).

44 FMSHRC Page 605

federal courts.2 Miners avoiding the area do not absolve Respondent of its obligation to follow
all safety standards.
The Court has considered the motion in the context of comparing it with the
Commission’s AmCoal decision and finds that it does not meet that decision’s standard of
review. Accordingly, the motion to approve settlement is DENIED.

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

2

Federal case law is clear that redundant safety measures are not to be considered in
evaluating a hazard. For example, in Knox Creek Coal, 811 F.3d 148 (4th Cir. 2016), that Court
observed:
“[i]f mine operators could avoid S & S liability—which is the primary sanction they
fear under the Mine Act—by complying with redundant safety standards, operators
could pick and choose the standards with which they wished to comply.”…Such a
policy would make such standards “mandatory” in name only. It is therefore
unsurprising that other appellate courts have concluded that ‘[b]ecause redundant
safety measures have nothing to do with the violation, they are irrelevant to the [S
& S] inquiry.’ Cumberland Coal, 717 F.3d at 1029; see also Buck Creek, 52 F.3d
at 136.
Knox Creek Coal, 811 F.3d 148, 162 (4th Cir. 2016).
Regarding this issue, in Consolidation Coal, 895 F.3d 113, (D.C. Cir. 2018), the D.C.
Circuit, referring to its decision in Cumberland Coal Resources, LP v. Federal Mine Safety &
Health Review Commission, 717 F.3d 1020 (D.C. Cir. 2013), noted that it:
interpreted the statutory text to focus on the “nature” of “the violation” rather than
any surrounding circumstances. More to the point, the court held that
“consideration of redundant safety measures,”—that is, “preventative measures that
would have rendered both injuries from an emergency and the occurrence of an
emergency in the first place less likely”—“is inconsistent with the language of
[Section] 814(d)(1).” Id. at 1028–1029.
Id. at 118-119.

44 FMSHRC Page 606

Distribution:
Gary W. Oliver
Conference & Litigation Representative
U.S. Department of Labor, MSHA
3837 S. US Hwy 25E, Barbourville, KY 40906
oliver.gary@dol.gov
Eric S. Lewis
Covol Fuels No. 3 LLC
Box 853, Pineville, KY 40977
eric@covolfuel.com

44 FMSHRC Page 607

ADMINISTRATIVE LAW JUDGE ORDERS

44 FMSHRC Page 608

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
721 19th Street, Suite 443
Denver, Colorado, 80202-2500
Telephone: (303) 844-5267

August 18, 2022
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 2022-0010-M
A.C. No. 41-00009-542457

v.

Fairland Plant & Qys

CACTUS CANYON QUARRIES INC,
Respondent
ORDER DENYING RESPONDENT’S MOTION FOR SUMMARY DECISION
Before: Judge Manning
This case is before me upon a petition for assessment of a civil penalty under section
105(d) of the Federal Mine Safety and Health Act of 1977. On May 6, 2022, Respondent,
Cactus Canyon Quarries Inc. (“Cactus Canyon”), filed a Motion for Summary Decision (“CCQ
Mot.”). Subsequently, on August 15, 2022, the Secretary filed his Objection and Response to
Respondent’s Motion for Summary Decision (“Sec’y Resp.”). 1 I find summary decision is
inappropriate and DENY Respondent’s motion.
Although the procedural posture of this case is long and complicated, for purposes of
this order only certain events need be mentioned. On October 4, 2021, Respondent mailed its
Notice of Contest to MSHA. Subsequently, on November 26, 2021, i.e., more than 45 days after
receipt of the Notice of Contest, the Secretary filed a Motion for Extension of Time to File
Initial Pleading citing the need for “additional time to allow the parties to thoroughly explore
settlement in this matter.” On December 1, 2021, the Commission’s Chief Administrative Law
Judge (the “Chief Judge”) found that the Secretary had shown good cause and issued an order
granting the Secretary’s motion and affording the Secretary until January 18, 2022, to file the
initial pleading (the “Chief Judge’s Order”). After first asking for reconsideration of the Chief
Judge’s Order, which was not granted, Respondent filed a petition for discretionary review on
December 23, 2021, challenging the validity of the Chief Judge’s Order and asking that the case
be dismissed. On January 4, 2022, the Commission issued a notice stating that “after
consideration by the Commissioners, no two Commissioners voted to grant the petition [for
discretionary review] or to otherwise order review.” Finally, on January 18, 2022, the Secretary
1

At the time Respondent filed its motion the case was stayed pending an appeal to the
Fifth Circuit Court of Appeals. On July 18, 2022, the Fifth Circuit dismissed the appeal for lack
of subject matter jurisdiction. Subsequently, I lifted the stay and ordered the Secretary to file his
response to the motion by no later than August 15, 2022.

44 FMSHRC Page 609

electronically filed the petition for assessment of penalty ( the “penalty petition”) with the
Commission and served the same upon Respondent via email.
Cactus Canyon moves the court to vacate the citations at issue and dismiss the penalty
petition with prejudice. CCQ Mot. 12. Respondent argues the Commission’s decision in Salt
Lake County Road Dep’t., 3 FMSHRC 1714 (July 1981), as well as other Commission case law,
constitute “Black Letter Law” that “when the Secretary is late-filing a petition, the Secretary
must file the petition to institute the proceeding and file a motion for forgiveness / excuse
showing good cause to excuse the late filing.” Respondent takes issue with the validity of the
Chief Judge’s Order and argues the Secretary failed to timely file and serve the penalty petition
and/or properly show good cause for why the late filing should be excused.2
The Secretary, in his response, argues that the penalty petition was timely filed and
served pursuant to the deadline set forth in the Chief Judge’s Order. Sec’y Resp. 10-11. The
Secretary asserts it was within the Chief Judge’s discretion to set a new deadline, which the
Secretary met by electronically filing the penalty petition with the Commission and serving the
penalty petition on Respondent via email on January 18, 2022. Respondent is not entitled to
summary decision as a matter of law because there is no issue of material fact that the Secretary
filed the petition and served Respondent by the deadline set by the Chief Judge.
I will not revisit the validity of the Chief Judge’s Order. The Chief Judge had
jurisdiction and control over this case when Respondent filed its Notice of Contest on October
4, 2021, until February 14, 2022, when the case was assigned to me.3 While the case was under
his jurisdiction and control, the Chief Judge, citing “good cause having been shown,” saw fit to
grant the Secretary’s motion for an extension of time to file the penalty petition. Although
Respondent continues to dispute the validity of the Chief Judge’s Order, the issue was appealed
and, on January 4, 2022, the Commission declined to grant the petition for discretionary review
and the Fifth Circuit subsequently dismissed Respondent’s appeal. Unlike the Commissioners, I
do not sit in a position of review. Accordingly, I decline to review the Chief Judge’s order.
Moreover, principals of the “law of the case doctrine” dictate that, absent extraordinary
circumstances, courts should be loathe to overturn prior decisions of their own or those of a
coordinate court, i.e., the Chief Judge. Christianson v. Colt Industries Operating Corp., 486

2

Although other issues, such as the appropriateness of the previous stay and my ability to
rule on the motion during the pendency of the appeal, were raised in Respondent’s motion, those
issues are moot and not addressed in this order.
3

The Secretary cites the Supreme Court’s decision in Thunder Basin Coal Co. v. Reich,
510 U.S. 200, 209 (1994), for the proposition that “actions before the Commission are initiated
not by the Secretary but by a mine operator who claims to be aggrieved.” I previously found
Commission jurisdiction began when the Notice of Contest was filed. Cactus Canyon Quarries
Inc., 44 FMSHRC 353, 354 (April 2022) (ALJ). Accordingly, the Chief Judge properly had
jurisdiction over this case at the time he issued his December 1, 2021 order.

44 FMSHRC Page 610

U.S. 800, 817 (1988).4 Here, nothing in the record suggests extraordinary circumstances exist
that would warrant revisiting the Chief Judge’s determination that good cause existed for
granting an extension of time to file beyond the 45-day limit set forth in Commission
Procedural Rule 28(a).5
Commission case law makes clear that the 45-day time limit is not a statute of
limitations. Salt Lake at 1715-1716; Rhone-Poulenc of Wy. Co., 15 FMSHRC 2089, 2092-2093
(Oct. 1993). Further, when adequate cause is shown for a delay in filing a penalty, absent
evidence of actual prejudice, procedural irregularities are subservient to the substantive purpose
of the Mine Act to protect miners. Long Branch Energy, 34 FMSHRC 1984, 1990-1991 (Aug.
2012) (“The requirement in Rule 28(a) to file a penalty petition within 45 days cannot be
viewed as an avenue for an operator to seek dismissal on a mere technicality.”)
Here, the Chief Judge found good cause to grant the Secretary’s motion for an extension
of time to file the penalty petition. Moreover, Respondent alleged no actual prejudice. Given the
absence of extraordinary circumstances or actual prejudice, I see no reason to revisit what was
already decided by the Chief Judge and unsuccessfully appealed.
Given that the Chief Judge’s order must stand, the only questions that remain are
whether the Secretary timely filed the penalty petition and served Respondent by the date set
forth in the Chief Judge’s Order.
The Secretary timely filed the penalty petition with the Commission. Commission
Procedural Rule 5 states that documents filed via electronic transmission are “effective upon
successful receipt by the Commission.” 29 C.F.R. § 2700.5(f). An email dated January 18,
2022, from FMSHRC’s eCMS system confirms the penalty petition was timely received by the
Commission. Sec’y Resp. Ex. I. I find that the Secretary timely filed the penalty petition in
accordance with deadline set forth in the Chief Judge’s Order.
The Secretary timely served the penalty petition upon Respondent. Commission
Procedural Rule 7 permits service via electronic mail and provides “service is effective upon
successful receipt by the party intended to be served.” 29 C.F.R. § 2700.7(c). The Certificate of
4

The law of the case doctrine “expresses the practice of courts generally to refuse to
reopen what has been decided[.]” Christianson at 817 (quoting Messenger v. Anderson, 225
U.S. 436, 444 (1912)). I note the Sixth Circuit Court of Appeals has held that “a transferee
judge ought as a practical matter to accord considerable deference to the judgment of the
transferor court[,]” In re Upjohn Co. Antibiotic Cleocin Prods. Liab. Litig., 664 F.2d 114, 120
(6th Cir. 1981), and as “[a]pplied to coordinate courts, the [law of the case] doctrine is a
discretionary tool available to a court in order to promote judicial efficiency. As such, a
decision to reconsider a previously decided issue will be deemed erroneous only if it is shown
that the transferee court abused its discretion.” U.S. V. Todd, 920 F.2d 399, 403 (6th Cir. 1990).
5

Commission Procedural Rule 28(a) states that “[w]ithin 45 days of receipt of a timely
contest of a proposed penalty assessment, the Secretary shall file with the Commission a petition
for assessment of penalty.” 29 C.F.R. § 2700.28(a).

44 FMSHRC Page 611

Service included with the penalty petition indicates the Secretary emailed the penalty petition
on January 18, 2022. Moreover, an email dated the same date confirms the Secretary sent a
digital copy of the penalty petition to Respondent.6 Sec’y Resp. Ex. J. I find that the Secretary
timely served the penalty petition in accordance with deadline set forth in the Chief Judge’s
Order.
For the reasons stated above, Respondent’s Motion for Summary Decision seeking
dismissal of this case is DENIED.7

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

Distribution (First Class Mail and email):
Chris Lopez-Loftis, Esq., Office of the Solicitor, U.S. Department of Labor, MSHA, 525 S.
Griffin Street, Suite 501, Dallas, TX 75202 (lopez.christopher.d@dol.gov)
Andy Carson, Esq., Cactus Canyon Quarries, 7232 CR 120, Marble Falls, TX 78654
(acarsonmarblefalls@aol.com; ccqmarblefalls@aol.com)

6

The record demonstrates that on January 18, the Secretary emailed the penalty petition
to the official email address for Respondent and also emailed a copy to Andy Carson, counsel for
Respondent.
7

Commission Procedural Rule 67(b) states that the Court may grant summary decision
where the “entire record…shows: (1) [t]hat there is no genuine issue as to any material fact; and
(2) [t]hat the moving party is entitled to summary decision as a matter of law.” 29 C.F.R.
§2700.67(b).

44 FMSHRC Page 612

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE N520
WASHINGTON, D.C. 20004-1720

August 26, 2022
ADMINISTRATIVE LAW JUDGE HEARINGS ORDER
Glynn F. Voisin, Chief Administrative Law Judge:
Federal Mine Safety and Health Review Commission Administrative Law Judges are
committed to a high standard to protect the health and safety of all persons who may appear
before them, during the Coronavirus 2019 (COVID-19) pandemic, while continuing the agency’s
mission. As of January 3, 2022, the Commission has resumed in-person hearings, but for the
duration of this order all hearings are subject to its terms.
Commission Judges may, at their sole discretion, hold remote hearings (e.g. via Zoom)
and in-person hearings. Judges also have the discretion to hold a hybrid hearing, that includes
both in-person and video participation. Commission Judges shall exercise this discretion within
uniform parameters as set forth herein. Each Judge shall determine (1) when to use remote
hearings in lieu of in-person hearings and (2) specific safety procedures to be used at a hybrid or
in-person hearing.
In determining the type of hearing, Judges will consider current guidance and safety
factors on a case-by-case basis. Judges will ensure all parties appearing pro se who are required
to participate in a remote hearing have access to equipment, an internet connection, and other
appropriate technology. Prior to conducting an in-person hearing, Judges will schedule a
conference call with the attorneys and representatives of each of the parties to discuss, among
other things, safety considerations for the in-person hearing. Persons who are not comfortable
with travel or appearing in person, may request to attend the hearing via remote access (e.g., via
Zoom). Judges may discuss the agency’s workplace safety plan that outlines travel guidelines,
protocols, and safety measures in conjunction with the CDC Community Levels1.
The Judge will set a hearing location after considering CDC Community Levels using the
CDC COVID Data Tracker2 and the safety and health rules currently in place by the state and
local public health entities. Where community levels are HIGH, Judges are discouraged from
setting in-person hearings. If in-person participants are traveling to attend a hearing, the
community levels of where they are traveling from need to be taken into account as well. In
choosing a courtroom, the Judge will take into consideration the rules and requirements of the
court or hearing facility, as well as all applicable federal, state, and local regulations and
guidelines. If the hearing is to be a hybrid hearing, the Judge will also consider the availability of
internet and technology needs in the courtroom.

1

See https://www.cdc.gov/coronavirus/2019-ncov/science/community-levels.html

2

See https://covid.cdc.gov/covid-data-tracker/#countyview?list_select_state=all_states&list_select_county=all_counties&data-type=CommunityLevels

44 FMSHRC Page 613

During the prehearing conference, the Judge will consider federal, state, local and
courtroom requirements and inform the parties of such requirements. The requirements apply to
all persons attending the in-person hearing. The discussion will also address who may enter the
courtroom, when, and what safety measures, such as masks and physical distancing, must be
implemented. No person may enter the courtroom, or the witness room without the permission of
the Judge.
In addition to any federal, state, local and facility safety and health rules, all persons
attending in-person hearings are also subject to the below requirements:
•

FMSHRC employees:
o All FMSHRC employees must adhere to the agency’s workplace safety plan,
diagnostic testing policy, and CDC guidance on physical distancing, mask wearing,
isolation in the event of symptoms or a positive test result, and official travel
requirements.

•

Visitors, Contractors, Non-government Parties, Representatives and Witnesses:
o Contractors, for purposes of this order, are defined as individuals who have been
contracted by FMSHRC to attend an in-person hearing for a specific purpose (e.g. a
court reporter creating a transcript).
o Visitors, Contractors, Non-government Parties, Representatives and Witnesses who
attend an in-person hearing must adhere to the agency’s workplace safety plan and
CDC guidance on physical distancing, mask wearing, and isolation in the event of
symptoms or a positive test result. When CDC Community Levels are MEDIUM or
HIGH, the same individuals must complete the COVID-19 Symptom Screening Tool
form before entering a facility where an in-person hearing will be held. 3

The Judge may consider all factors, in totality, in determining if a remote hearing will be
held and who may be present for the hearing. No single factor is dispositive.
These procedures shall remain in place until this order is vacated or otherwise modified
by subsequent order.
SO ORDERED.

/s/ Glynn F. Voisin
Glynn F. Voisin
Chief Administrative Law Judge
3

The FMSHRC COVID-19 Screening Tool form is available in Appendix C of the
agency’s workplace safety plan. Individuals who plan to attend a hearing can also obtain a copy
of the form by contacting a Judge’s office.

44 FMSHRC Page 614