Secretary of Labor v. CAM Mining, LLC

Plain-English summary

During retreat mining at CAM Mining's underground coal mine in Kentucky, an MSHA inspector found that the coal stumps left to hold up the roof measured as little as one to three feet where the mine's approved roof control plan required at least six. Two preshift examinations had passed without anyone writing the condition down. The company argued a preshift examiner only has to report hazards inside the specific areas the rule tells him to walk, and the undersized stumps were across the breaker line in the worked-out area. The Commission disagreed, holding that if a condition is visible from where the examiner already stands and it endangers miners in the working section, it must be recorded and fixed before the shift starts. It noted that CAM's own practice was to check roof and timbers beyond the breaker line. The Commission also upheld the significant and substantial and unwarrantable failure findings even though the judge never analyzed them, because the record pointed only one way: the roof could be heard working, timbers were failing, the inspector made the company skip a whole row of pillars, every stump on the section was undersized, and the condition had lasted more than 24 hours across two shifts. Commissioners Young and Cohen agreed on the violation and on S&S but would have sent the unwarrantable failure question back to the judge, since that finding is committed to the trial judge's discretion and he gave no reasons at all.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.220(a)(1) and 75.360(b)(3)
• Outcome: The violation, the significant and substantial designation, and the unwarrantable failure designation were all affirmed for both the citation and the order.
• Key point: A preshift examiner cannot ignore a hazard he can see from the area he is required to examine just because its source lies outside that area.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004‑1710

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA)

v.

CAM MINING, LLC

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Docket Nos. KENT
2013-196-R

KENT
2013-197-R

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura,
and Althen, Commissioners

DECISION

BY: Jordan, Chairman; Nakamura and Althen, Commissioners

These contest proceedings
arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seq. (2012) (“Mine Act”). At issue are a citation and order which the
Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued to CAM
Mining, LLC (“CAM”). The citation alleges a violation of 30 C.F.R. § 75.220(a)(1)[1] for the failure to follow the mine’s approved roof
control plan by leaving insufficient stumps during retreat mining. The order
alleges a violation of 30 C.F.R. § 75.360(b)(3)[2]
for failing to document the aforementioned hazard during the preshift
examination. MSHA designated both violations as being “significant and
substantial” (“S&S”) and resulting from an unwarrantable failure to comply.[3]

The Administrative
Law Judge affirmed the citation and order as written. He found that both the
citation and order were “validly issued” to CAM but did not specifically address
the S&S and unwarrantable failure allegations. 36 FMSHRC 2204, 2223 (Aug. 2014) (ALJ). On review, CAM
challenges the Judge’s findings as to the validity of the preshift examination
order and the S&S and unwarrantable failure designations for both
violations.

For
the reasons that follow, we affirm the Judge’s decision.

I.

Factual and Procedural Background

CAM operates an underground coal mine in Kentucky. The
mine has an approved roof control plan that permits it to engage in retreat
mining, whereby CAM makes cuts in the pillars of coal that were originally left
for roof support as mining advanced into the coal seam. The roof control plan
permits CAM to take two to three cuts on each side of a 60-by-50 foot pillar,
forming a chevron pattern. See CAM Ex. G. Cuts must be made at least six
feet away from the corners of the pillar so that sufficient coal remains to
help temporarily support the roof. The remaining coal on the outby side of the
pillar is referred to as a “stump.”

On
October 17, 2012, MSHA Inspector Carl Little was inspecting the seven entries
along the 001/003 super-section of the mine that was engaged in retreat mining.
36 FMSHRC at 2218; Tr. 257–58. At the breaker line,[4]
Little looked across the intersection and noted that the stumps appeared
significantly less than the six-foot minimum required by the roof control plan.
Tr. 58–59, 68–70, 260. Little estimated
that the stumps measured between one to five feet, with over half of the stumps
measuring three feet or less. 36 FMSHRC at 2215 (citing Sec’y Ex. 5, Tr. 321,
322).

The row of columns in the worked-out area adjacent to
the active workings had been mined during the previous day. Since mining began
on the row, CAM had performed two preshift examinations of the area. Tr. 270. When
Little reviewed the preshift reports, he found no mention of the inadequately
sized stumps.

Based on these observations, Little issued Citation
No. 8273702, alleging a violation of 30 C.F.R. § 75.220(a)(1), and Order No.
8273703, alleging a violation of 30 C.F.R. § 75.360(b)(3). Sec’y Exs. 1–2. Citation No. 8273702 states
that the operator failed to leave the minimum size stumps as required in the
approved roof control plan. Order No. 8273703 states that CAM failed to conduct
an adequate preshift examination because the conditions for which Citation No.
8273702 was issued were not observed by the preshift examiner, reported to the
operator, or corrected prior to the beginning of the shift. Both of the
violations were designated as S&S and as unwarrantable failures with high
negligence. Id.  

In his decision, the Judge affirmed both the citation
and the order. Crediting the testimony of Inspector Little, the Judge found
that CAM had taken three cuts from each side of the pillars, and, in doing so, had
failed to leave the six-foot stumps required under the roof control plan. The
Judge rejected CAM’s arguments that the reduced size of the stumps could be
explained by sloughage or permitted rounding of the pillar’s corners. Instead,
the Judge concluded that the evidence of greatly undersized stumps, some only
one to three feet wide, strongly suggested that CAM had mined more coal from
the pillars than the roof control plan allowed. The Judge credited the
Inspector’s testimony and found that the inadequate stumps could reduce the
stability of the roof in the active workings and would pose a hazard to miners
working outby in the next row of pillars. 36 FMSHRC at 2215–16.

Concerning
the preshift examination, the Judge found that CAM was required to examine the
stumps from the breaker line because sections 75.360(b)(3) and (11)(i)
specifically require that the preshift examination be conducted in “approaches
to worked-out areas” and that such examinations identify roof control
violations. The Judge did not fully articulate how subsection 75.360(b)(3), the
cited standard, could be interpreted to include areas outside the approach to
the worked-out area in the preshift examination. Rather, the Judge concluded
that 30 C.F.R. § 75.360(b)(11) requires the preshift examiner to
examine the entire subsection, regardless of whether miners will work or travel
in that area. 36 FMSHRC at 2222.

II.

Disposition

A. Order No. 8273703 –
Failure to Perform an Adequate Preshift Examination

Section
75.360(b) states in relevant part:

The person
conducting the preshift examination shall examine for hazardous conditions and
violations . . . at the following locations:

. . . .

(3) Working
sections and areas where mechanized mining equipment is being installed or
removed, if anyone is scheduled to work on the section or in the area during
the oncoming shift. The scope of the examination shall include the working
places, approaches to worked-out areas and ventilation controls on these
sections and in these areas, and the examination shall include tests of the
roof, face and rib conditions on these sections and in these areas.

30 C.F.R. § 75.360(b)(emphasis
added).

The parties disagree as to the meaning of section
75.360(b)(3).[5] CAM argues that the preshift examination is limited
to the areas specified in section 75.360(b)(3), i.e., working places, approaches to worked-out areas, and ventilation controls
on these sections and in these areas.
CAM contends that an examiner is not responsible for reporting hazards or
violations that exist outside the areas expressly identified in section
75.360(b)(3). The Secretary, however, disagrees and argues that requiring the
examiner to include all hazards visible from the examination area is consistent
with the history and purpose of the standard.

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 Dyer v. United States, 832
F.2d 1062, 1066 (9th Cir. 1987); Utah Power & Light Co., 11 FMSHRC
1926, 1930 (Oct. 1989); Consolidation Coal Co., 15 FMSHRC 1555, 1557
(Aug. 1993). If, however, a “regulation is silent or ambiguous with respect to
the specific point at issue, we must defer to the agency’s interpretation as
long as it is reasonable.” Tenet HealthSystems Healthcorp. v. Thompson,
254 F.3d 238, 248 (D.C. Cir. 2001). See generally Auer v. Robbins,
519 U.S. 452, 457 (1987).

The plain purpose of the regulation is to protect
miners on working sections and where mechanized equipment is being installed or
removed. It would be antithetical to that purpose if a preshift examiner could
turn a blind eye to observable conditions that create hazards within the designated
areas merely because the source of the hazard is in an area outside the specific
area the examiner must traverse. Section
75.360(b)(3) requires that a preshift examination be conducted “at” the approaches
to worked-out areas. “At” is an imprecise term that can mean “in” or “near” a
specified location. The American Heritage Dictionary of the English
Language 112 (4th ed. 2009). Nothing in the standard excludes a preshift
examiner from reporting a hazard to miners in working areas because the hazard
arises from outside the specific areas traveled in the preshift. Therefore, we conclude
that section 75.360(b)(3) requires preshift examiners to report observable conditions
regardless of where the condition is located if the condition creates a hazard
within working sections or an area where mechanized equipment is being
installed or removed.

Were
we uncertain of the proper interpretation, we would find the regulation
ambiguous and recognize that the Secretary’s interpretation is reasonable and must
be accorded controlling deference. The Secretary’s
interpretation does not, as CAM argues, require the examiner to enter the worked-out
area. The Judge found that the stumps
were clearly visible from the breaker line while the examiner was making other
required observations. 36 FMSHRC at 2221. This interpretation does not require
a preshift examination of the entire mine.

If a
hazardous condition that would affect miners outby can be seen from the examination
area, then our and the Secretary’s interpretation of section 75.360(b)(3) requires
such a condition to be recorded during the preshift examination and abated
before the start of the shift. As stated, such an interpretation is consistent
with the standard’s plain language and furthers the purpose of the preshift
examination—to prevent miners from being exposed to hazardous conditions
created during the prior shift. See 57 Fed. Reg. 20,868, 20,893 (May 15,
1992) (codified at 30 C.F.R. pt. 75) (the preshift examination “allows miners
on the oncoming shift to be notified if hazards exist and allows corrective
actions to be taken”). We note that CAM’s interpretation is inconsistent with
its own practice of checking the roof and timbers located in the intersection
beyond the breaker line. Tr. 185–86.

Based
on the foregoing, we find that the Secretary’s interpretation is reasonable and
deserving of controlling deference. Accordingly, we affirm the fact of the
violation.

B. Citation No. 8273702
and Order No. 8273703   – S&S
and Unwarrantable Failure

The Judge
concluded that Citation No. 8273702 and Order No. 8273703 were “validly issued
to CAM Mining LLC.” 36 FMSHRC at 2223. However, the Judge did not expressly
make findings as to S&S or the unwarrantable failure designation. Both the Secretary and CAM acknowledge that the Judge
erred in failing to provide any analysis of these issues.

Pursuant
to Commission Rule 69(a), a Judge is responsible for addressing “all findings
of fact and conclusions of law, and the reasons or bases for them, on all the
material issues of fact, law or discretion presented by the record.” 29 C.F.R.
§ 2700.69(a). The Commission requires that its Judges analyze and weigh all
probative evidence, make appropriate findings, and explain the reasons for their
decisions. Mid-Continent Res., Inc., 16 FMSHRC 1218, 1222 (June 1994); Martin
County Coal Corp., 28 FMSHRC 247, 262–63 (May 2006) (reversing and remanding ALJ’s decision
to uphold violation, S&S and unwarrantable failure because the opinion
“fails to articulate the basis for his conclusion and omits necessary
findings.”).

Because
the Judge failed to address S&S and unwarrantable failure in his decision,
we would normally remand the case to make these findings. However, we need not
do so where the record so clearly supports the Secretary’s S&S and
unwarrantable failure allegations. See
American Mine Servs., Inc., 15 FMSHRC
1830, 1834 (Sept. 1993) (where evidence supports only one conclusion, remand on
that issue is unnecessary) (citing Donovan v. Stafford Constr. Co., 732
F.2d 954, 961 (D.C. Cir. 1984)).

1. S&S

First,
we address whether the violations were S&S. In Mathies Coal Company, the Commission
explained:

In order to establish that a violation of a mandatory
safety standard is significant and substantial under National Gypsum,
the Secretary of Labor must prove: (1) the underlying violation of a mandatory
safety standard; (2) a discrete safety hazard — that is, a measure of danger to
safety — contributed to by the violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a reasonable likelihood that
the injury in question will be of a reasonably serious nature.

6 FMSHRC 1, 3–4 (Jan. 1984) (footnote
omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th
Cir. 1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th
Cir. 1988) (approving Mathies criteria).

The
record is clear that CAM’s failure to leave adequate stumps severely
jeopardized the integrity of the roof, exposing miners to the hazard of working
under an inadequately supported roof. At the time of the inspection, the roof
conditions had deteriorated to the point where it was possible to hear the roof
working, and timbers were starting to fail in the area that had been mined during
the previous shift. Tr. 265. The danger of the roof was so pronounced that
Inspector Little found it necessary to require CAM to skip an entire row of
pillars in order to abate the hazard.

The
Judge credited Inspector Little’s assessment of the risk posed by the
inadequate stumps and Graduate Engineer Robert Bellamy’s testimony that even a
one-foot reduction in the stump size across an entire row would be a “big
concern.” 36 FMSHRC at 2211. The Judge also credited the inspector’s testimony that
the failure of the roof in the worked out area could adversely affect the
miners mining the next pillar and that the conditions were “likely to cause a
very serious accident or fatality if the practice continues.” Id. at
2210. Given these findings, it is reasonably likely that the hazard could
result in an injury of a reasonably serious nature. See Halfway, Inc.,
8 FMSHRC 8, 12–13 (Jan. 1986) (affirming an S&S determination for failing
to comply with the mine’s roof control plan when miners could have worked or
traveled in areas with inadequately supported roof).

2. Unwarrantable Failure

Unwarrantable failure is aggravated conduct
constituting more than ordinary negligence. Emery Mining Corp., 9 FMSHRC
1997, 2001 (Dec. 1987). Unwarrantable failure is characterized by “reckless
disregard,” “intentional misconduct,” “indifference,” or a “serious lack of
reasonable care.” Id. at 2003–04; Rochester & Pittsburgh Coal Co.,
13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, 52 F.3d
at 136 (approving Commission’s unwarrantable failure test).

Whether
the conduct is “aggravated” in the context of unwarrantable failure is
determined by looking at all the facts and circumstances of each case,
including (1) the extent of the violative condition, (2) the length of time
that it has existed, (3) whether the violation posed a high risk of danger, (4)
whether the violation was obvious, (5) the operator’s knowledge of the
existence of the violation, (6) the operator’s efforts in abating the violative
condition, and (7) whether the operator has been placed on notice that greater
efforts are necessary for compliance. See Manalapan Mining Co., 35
FMSHRC 289, 293 (Feb. 2013); IO Coal Co., 31 FMSHRC 1346, 1350–57 (Dec.
2009). These factors need to be viewed in the context of the factual
circumstances of a particular case. Consolidation Coal Co., 23 FMSHRC
588, 593 (June 2001). All of the relevant facts and circumstances of each case
must be examined to determine if an operator’s conduct is aggravated or whether
mitigating circumstances exist. Id.

As
discussed above in our S&S analysis, the record is clear that the failure
to maintain adequate stumps created a high degree of danger. In addition, CAM
should have known about the deficient stumps because the hazardous condition
was so extensive and obvious. All of the stumps on the 001/003 super-section were less than the six-foot
minimum, and many of them were significantly deficient. Four of the stumps were
two feet or less in width. 26 FMSHRC at 2215.

Such
a striking difference in size should have been obvious during even the most
cursory exam. Yet, despite the fact that the Judge found that it was “entirely
possible to observe and estimate the size of the stumps from the breaker line,”
examiners traveled to the breaker line but did not report observable conditions
across the crosscut during two separate preshift examinations. Id. at
2221.

Moreover,
CAM’s repeated failure to report the inadequate stumps and abate the hazard
exposed at least two shifts of miners to highly dangerous conditions. The row
of pillars had been cut during the day shift the day prior to the MSHA
inspection. Tr. 59–60. That means that the hazardous condition had lasted in
excess of 24 hours before the hazardous condition could be abated. See
generally Windsor Coal Co., 21 FMSHRC 997, 1001–04 (Sept. 1999) (finding
that a duration in excess of one shift weighs in favor of finding an
unwarrantable failure). 

While
the record does not contain any evidence that CAM was placed on notice that
greater efforts were required to comply with its roof control plan or preshift
examination requirements, the evidence supporting the other factors
overwhelmingly weighs in favor of the unwarrantable failure designations. Accordingly,
we affirm the Judge’s S&S and unwarrantable failure determinations.  

III.

Conclusion

For
the foregoing reasons, we affirm the Judge’s finding of a violation for failing
to perform an adequate preshift examination. We also conclude that the record
supports the S&S and unwarrantable failure designations for both Citation
No. 8273702 and Order No. 8273703.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/
Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

/s/
William I. Althen

William
I. Althen, Commissioner

Commissioners
Young and Cohen, concurring in part and dissenting in part:

We
agree with the majority’s reasoning and its decision in affirming the Judge’s
finding of a violation. We also agree with the conclusion that the nature of
the violation as S&S is irrefutably established by the record. However, we
do not join in its short-circuiting—well-intentioned and understandable though
it may be—of the review process on the unwarrantable failure findings.

Our
principal concern is the lack of any analysis or even an express conclusion on
the unwarrantable failure issue by the Judge. The determination of an
unwarrantable failure is inherently a judicial function. It is both
fact-intensive and committed to the subjective discretion of the trier of fact.
IO Coal Co.,
31 FMSHRC 1346, 1351 (Dec. 2009) (vacating and remanding ALJ’s finding for
failure to address all the elements of unwarrantable failure, and failure to
identify the relevant factors that affected his finding); see also Martin
County Coal Corp., 28 FMSHRC 247, 261 (May 2006) (“The Commission requires
that a judge analyze and weigh all probative record evidence, make appropriate
findings, and explain the reasons for his or her decision.”). While the
majority correctly notes that the record clearly contains substantial evidence
that would support a finding of unwarrantable failure, the operator did, in
fact, contest the issue, both before the Judge and on review, and argued
at length that the finding was not appropriate. See CAM Post Hrg.
Br. at 33–36; PDR at 22–25. As the operator notes, and as the Secretary
acknowledges,[6]
the Judge’s opinion doesn’t discuss “unwarrantable failure” beyond noting the
inspector’s designation of the violation as such in the order. Thus, there is
no exposition of the specific criteria or the weight given to those criteria in
determining that the violations here arose from the operator’s unwarrantable
failure.

The
Commission, citing the D.C. Circuit Court of Appeals, has noted that
“‘[p]erhaps the most essential purpose served by the requirement of an
articulated decision is the facilitation of judicial review.’” IO Coal Co.,
31 FMSHRC 1346, 1351 (Dec. 2009) (quoting Harborlite Corp. v. ICC,
613 F.2d 1088, 1092 (D.C. Cir. 1979)). “Without findings of fact and some
justification for the conclusions reached by a judge, the Commission cannot
perform its review function effectively.” Id. (citing Anaconda Co., 3
FMSHRC 299, 299–300 (Feb. 1981)). The credibility of the Commission’s
deliberative process depends on the transparency afforded by clearly
articulated bases in our decisions.

In
this case, the operator expressly noted the Commission’s well-established
requirement that the factors relevant to the determination of the unwarrantable
failure issue must all be at least acknowledged, and that relevant factors must
be discussed. CAM Post Hrg. Br. at 34–35 (citations omitted). There is a
complete absence of any analysis in the Judge’s Decision, or even recognition
of the relevant factors here.

As
the majority notes, there is no evidence in the record that the operator was on
notice that greater efforts at compliance were necessary. Slip op. at 7. Arguably,
then, this is a factor weighing in favor of the operator. The Judge’s failure
to either decide that the factor is not relevant or is outweighed by the other
factors requires remand because the evaluation of the relative weight assigned
to various factors is the province of the Judge. Sierra Rock Prods., Inc.,
37 FMSHRC 1, 6 (Jan. 2015) (noting that “[i]t is ordinarily the province of the
Judge to engage in an analysis and balancing of the unwarrantability factors in
the context of the cited standard in the first instance.”). In Sierra Rock
Products, the Commission remanded the case to the Judge for further
consideration of the operator’s good faith belief, recognizing that
consideration of that sole factor needed to be “weighed against other
unwarrantability factors as re-examined in the context of the cited standard.” Id.
at 6–7. As we have held:

These
factors need to be viewed in the context of the factual circumstances of a
particular case, and some factors may be irrelevant to a particular factual
scenario. But all of the relevant facts and circumstances of each case must be
examined to determine if an actor’s conduct is aggravated, or whether the level
of the actor’s negligence should be mitigated.

Consolidation
Coal Co.,
22 FMSHRC 340, 353 (Mar. 2000); see also Martin County Coal, 28 FMSHRC at
257 (stating that “fact-finding is not the province of the Commission”) (citing
Mid-Continent Res., Inc., 16 FMSHRC 1218, 1222–23 (June 1994) (holding
remand appropriate when the Judge failed to adequately address evidentiary
record)).

A
remand would reinforce the important and central contribution Judges make in
weighing the totality of evidence presented in order to establish or refute a
charge of unwarrantable failure. Unlike an S&S determination, which often
involves a somewhat simpler, or at least more direct, analysis of the danger
presented by a hazard and the violation’s contribution to it, unwarrantable
failure requires an assessment and weighing of various different factors. The
fact that it involves weighing factors reinforces the need to show how the
Judge’s conclusion is grounded on objective facts in the record and their
relative values under the unique circumstances presented in each case.

We,
therefore, would remand the case for the Judge to make and support an express
finding on the unwarrantable failure issue. Such an outcome would be consistent
with the requirements we have established and our general practice to remand a
decision to the Judge for further consideration when decisions do not conform
to those requirements in deciding whether a violation did or did not result
from the operator’s unwarrantable failure.

/s/
Michael G. Young

Michael G. Young, Commissioner

/s/
Robert F. Cohen, Jr.

Robert
F. Cohen, Jr., Commissioner

[1] 30 C.F.R. § 75.220(a)(1) states that:

Each mine operator shall
develop and follow a roof control plan, approved by the District Manager, that
is suitable to the prevailing geological conditions, and the mining system to
be used at the mine. Additional measures shall be taken to protect persons if
unusual hazards are encountered.

[2] 30 C.F.R. § 75.360(b) requires that preshift examinations
be conducted in working places and approaches to worked-out areas where miners
will work or travel during the subsequent shift.

[3] The S&S terminology is taken from section
104(d)(1) of the Act, 30 U.S.C.

§ 814(d)(1), which
distinguishes as more serious any violation that “could significantly and
substantially contribute to the cause and effect of a . . . mine safety or
health hazard.”

The
unwarrantable failure terminology is taken from section 104(d)(1) of the Act,
30 U.S.C. § 814(d)(1), which establishes more severe sanctions for any
violation that is caused by “an unwarrantable failure of [an] operator to
comply with . . . mandatory health or safety standards.”  

[4] The breaker line is the most inby point of each entry on the working section where timbers
are set to help temporarily support the roof during the retreat mining process. Miners
are not permitted to work or travel inby the breaker line. See 36 FMSHRC
at 2206, 2211–12; CAM Ex. G.

[5] In its reply brief, CAM claims that the order should
be vacated because it was not given fair notice of the Secretary’s
interpretation of the preshift standard. The Secretary filed a motion to strike
CAM’s fair notice argument, claiming that the issue was not raised in CAM’s
Petition for Discretionary Review. To the extent that the issue of notice was
raised in the petition, it was limited to the argument that the Secretary was
advancing a new position under a 2012 revision to 30 C.F.R. § 75.360(b) which
added section 75.360(b)(11). PDR at 2. Because our holding is based on section
75.360(b)(3), which predated the 2012 revisions, we need not address issues
arising from the Judge’s consideration of section 75.360(b)(11). Accordingly,
the Secretary’s motion to strike is moot.

[6] The Secretary did not argue that the Commission
should conclude that the violations were established as S&S and unwarrantable
by the record, requesting instead that the issues be remanded for
determination.