Secretary of Labor v. Solar Sources Mining, LLC

Plain-English summary

Solar Sources Mining violated the berm standard at a surface coal mine after a haul truck went over a dumpsite edge and the driver was injured while escaping. The citation's S&S, unwarrantable-failure, high-negligence, and serious-gravity findings were no longer disputed; the appeal concerned the penalty. The Commission majority found that the judge had not properly credited the operator's low recent violation history and good-faith redesign of the dumping system, and had improperly elevated the settled negligence finding on remand. Rather than remanding the case a second time, the majority vacated the $69,000 assessment and imposed a $40,000 penalty. Chair Traynor dissented, arguing that the majority improperly reweighed the evidence and displaced the judge's penalty discretion.

Decision snapshot

• Cited standard: 30 C.F.R. § 77.1605(l)
• Outcome: The judge's penalty was vacated and Citation No. 9102704 was assessed a $40,000 penalty.
• Key point: Penalty findings must account for all six statutory criteria, including favorable violation history and good-faith compliance efforts.

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.                                              
:         Docket No. LAKE 2017-0099

:

SOLAR
SOURCES MINING, LLC                :

BEFORE:
Traynor, Chair; Althen and Rajkovich, Commissioners

DECISION

BY: Althen
and Rajkovich, Commissioners

This proceeding arises under
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2018)
(“Mine Act” or “Act”), on appeal from the Administrative Law Judge’s decision
on remand. It is the second time that the Commission is considering the penalty
assessment for a citation issued by the Department of Labor’s Mine Safety and
Health Administration (“MSHA”) to Solar Sources Mining, LLC (“Solar Sources”) for
failure to provide berms of substantial construction at a dumpsite.

As instructed by the
Commission’s prior decision, 42 FMSHRC 181 (Mar. 2020) (“ Solar Sources I ”),
the Judge reassessed the penalty and made additional findings on the section
110(i), 30 U.S.C. § 820(i), penalty criteria to more fully explain the bases
for his assessment. 42 FMSHRC 329 (May 2020) (ALJ) (“ ALJ Rem. Dec. ”). Solar
Sources appealed the Judge’s remand decision, alleging that the Judge erred in
assessing a $69,000 penalty and that substantial evidence does not support his penalty
assessment.

Having reviewed the Judge’s
remand decision, we conclude that the Judge erred again in his consideration of
the section 110(i) penalty criteria. For the reasons provided herein, we vacate
the Judge’s penalty assessment. In the interest of judicial economy, we assess a
new penalty here. As set forth in our analysis below, we conclude that the evidence
concerning the penalty criteria warrants a penalty of $40,000 .

I.               

Factual and Procedural Background

This proceeding arises from
an accident at the Shamrock Mine, an Indiana surface coal mine operated by
Solar Sources. The facts of the violation are fully set forth in the Judge’s
and the Commission’s initial decisions. 40 FMSHRC 462, 463-87 (Mar. 2018) (ALJ)
(“ ALJ Dec. ”); Solar Sources I , 42 FMSHRC at 182 . Briefly, on June 27, 2016, miner Shawn Standish backed
his haul truck carrying slurry to the edge of the dump pit. The truck’s rear
tires began to sink. Standish attempted to accelerate away from the edge but decided
to abandon the truck as it continued to sink. He climbed from its cab and
jumped, landing on the ground and breaking both heels and an ankle. The truck fell
over the edge and landed upside-down in the pit 47 feet below.

MSHA issued Citation No. 9102704,
pursuant to section 104(d)(1), 30 U.S.C. § 814(d)(1), to Solar Sources for
violating 30 C.F.R. § 77.1605(l), which provides:
“Berms, bumper blocks, safety hooks, or similar means shall be provided to
prevent overtravel and overturning at dumping locations.” Ex. P-3. MSHA designated
the citation as significant and substantial (“S&S”) [1] and concluded that the operator exhibited
an unwarrantable failure [2]
to comply with the standard.

Solar Sources contested the citation.
After a hearing, the Judge affirmed the Secretary’s gravity ( i.e. , highly
likely to be fatal) and high negligence findings and affirmed the S&S and unwarrantable
failure designations. The Judge found that a significant penalty was
appropriate “based on the high negligence, the serious gravity, and the fact
[that] Respondent knew or should have known the berm construction was
inadequate, yet it made no efforts to correct the hazardous condition . . . .” ALJ
Dec. , 40 FMSHRC at 495. In a footnote, the Judge summarily stated that he
had considered the other penalty criteria and assessed a penalty of $68,300—the
same amount proposed by MSHA. Id. at 495-96 & n.15.

Solar Sources appealed
the Judge’s decision, arguing that the Judge failed to assess a civil penalty
in accordance with the Mine Act and the Commission’s guidance in The American
Coal Co. , 38 FMSHRC 1987 (Aug. 2016), and, as a result, abused his
discretion. Solar Sources did not seek review of any other issues in the case.

On appeal, the Commission
vacated the Judge’s decision and remanded the case to him to reassess the penalty
after making the requisite findings and adequately considering all section
110(i) penalty criteria. Solar Sources I , 42 FMSHRC at 181. In
particular, the Commission noted that the Judge based his penalty determination
on only two criteria—negligence and gravity—and failed to make findings on and meaningfully
consider the remaining criteria. Specifically, the Judge failed to make
findings on the operator’s violation history and good faith abatement. The
Commission directed the Judge to consider the evidence pertaining to these
criteria and make findings and explain the impact of these criteria, along with
the other penalty criteria, on his penalty determination.

On remand, the Judge issued a lengthy
opinion. As an initial determination, the Judge concluded that “this violation
was ‘especially egregious.’” ALJ Rem. Dec. , 42 FMSHRC at 336.  Concerning
Solar Sources’ history of violations, the Judge found that two previous berm
violations six and eight years before the current violation were recent enough
to be relevant and that Solar Sources knew berms required “constant attention.”
Id. at 365. He also found that serious gravity and high negligence
outweighed any amelioratory effect that its history might have warranted. Addressing
good faith, the Judge gave no credit to the operator’s actions to assure future
compliance because MSHA required changes to Solar Sources’ berm procedures. As
to the remaining penalty criteria, the Judge found that the operator was large
and that the penalties would not affect its ability to continue in business.

In sum, the Judge stated that he
“applied greater weight to the negligence and gravity penalty factors and
determined that the modest violation history over the past two years should not
operate to bring about a net negative reduction in the penalty assessed,
especially when considered with the other statutory penalty factors.” Id.
at 358, 360. Based on his findings, the Judge increased the penalty to $69,000. [3]

II.

Disposition

Section 110(i) of the Mine
Act provides that the Commission is authorized to assess all penalties under
the Mine Act and that such penalties must reflect consideration of six
statutory factors:

[1] the operator’s history of previous violations, [2]
the appropriateness of such penalty to the size of the business of the operator
charged, [3] whether the operator was negligent, [4] the effect on the
operator’s ability to continue in business, [5] the gravity of the violation,
and [6] the demonstrated good faith of the [operator] charged in attempting to
achieve rapid compliance after notification of a violation.

30
U.S.C. § 820(i).

In drafting section 110(i), Congress’ primary purpose was to
encourage mine operator compliance under the Act. The  legislative   history
of the Act’s civil penalty provision states:

The purpose of . . . civil penalties, of
course, is not to raise revenues for the federal treasury . . . . [T]he purpose
of a civil penalty is to induce those officials responsible for the operation
of a mine to comply with the Act and its standards.

S. Rep. No. 95-181, at 40-41 (1977),  reprinted
in  Senate Subcomm. on Labor, Comm. on Human Res., Legislative   History  of
the Federal Mine Safety and Health Act of 1977 , at 628-29 (1978). See
also Ambrosia Coal & Constr. Co. , 18 FMSHRC 1552, 1565 n.17 (Sept.
1996) (recognizing importance of the deterrent function of civil penalties). The
legislative history of section   110 ( i )
makes clear that civil penalties are remedial, not punitive, and are assessed
to induce “effective and meaningful” compliance with safety and health
standards. Contractors Sand & Gravel Inc. , 23 FMSHRC 570, 580 (Jun.
2001).

The
Commission possesses independent authority to assess all penalties de novo
pursuant to section 110(i) of the Mine Act. While the Commission considers the
same criteria as the Secretary in assessing such penalties, it is bound neither
by the Secretary’s proposed assessment nor by his Part 100 regulations governing
his penalty proposal process. See Sellersburg
Stone Co. v. FMSHRC , 736 F.2d 1147,
1151-52 (7th Cir. 1984) (“neither the ALJ nor the Commission is bound by the
Secretary’s proposed penalties;” and “neither the Act nor the Commission’s
regulations require the Commission to apply the formula for determining penalty
proposals that is set forth in section 100.3”); Mach Mining, LLC , 809
F.3d 1259, 1263-64 (D.C. Cir. 2016) (“‘[U]nder both Commission and court
precedent, the regulations do not extend to the independent Commission, and
thus the MSHA regulations are not binding in any way in Commission
proceedings.’”) (citations omitted). It is important to keep that line of
separation between the Commission and the Secretary to maintain the review
process’s integrity. Otherwise, operators may believe that the Commission is merely
a rubber stamp of the Secretary’s assessment proposals.

The Commission has granted
Judges broad discretion in assessing civil penalties under the Mine Act. Westmoreland
Coal Co. , 8 FMSHRC 491, 492 (Apr. 1986) . This
“wide discretion” is necessary “if, as Congress intended, civil penalties
assessed under the Act are effectively to encourage operator compliance with
the Act and its standards and to protect the public interest.” U.S. Steel Mining Co., Inc. , 6 FMSHRC 1148, 1150 (May 1984) . However, such discretion is not unbounded and must
reflect proper consideration of the penalty criteria set forth in section
110(i) and the deterrent purpose of the Act. Id. (citing Sellersburg
Stone Co. , 5 FMSHRC 287, 290-94 (Mar. 1983), aff’d , 736 F.2d 1147
(7th Cir. 1984)).

Under Sellersburg and
the Commission’s Procedural Rules, an Administrative Law Judge must make:

[f]indings of fact on
each of the statutory criteria [that] not only provide the operator with the
required notice as to the basis upon which it is being assessed a particular
penalty, but also provide the Commission and the courts . . . with the
necessary foundation upon which to base a determination as to whether the
penalties assessed by the judge are appropriate, excessive, or insufficient.

Sellersburg , 5 FMSHRC at 292-93; 29 C.F.R. § 2700.30(a). Assessments “lacking record support, infected by plain error,
or otherwise constituting an abuse of discretion are not immune from reversal.”
U.S. Steel Corp. ,  6
FMSHRC 1423, 1432 (June 1984).

In its initial decision in this proceeding,
the Commission directed the Judge on remand:

to make specific findings regarding the operator’s
history of violations and the operator’s actions related to attempting to
achieve rapid compliance after notification of a violation, . . . [and then]
review th[o]se factors taking into account the findings on the other penalty
criteria. The Judge must then consider his penalty criteria findings along with
the record evidence, reassess a civil penalty, and explain his rationale in an
independent and reasoned manner.

Solar
Sources I , 42 FMSHRC at 188. At issue
is whether the Judge erred in reassessing and increasing the penalty to $69,000
after reviewing the operator’s history of violations and whether there was good
faith in addressing the violation. Solar Sources raises several arguments
challenging the Judge’s decision—primarily that the Judge erred in his
consideration of its history of violations, good faith abatement, and negligence—and
thus, he erred in his penalty reassessment.

In its first decision, the Commission noted extensive case law remanding
cases to Administrative Law Judges for failure to make adequate findings on the
section 110(i) penalty criteria and so that Judges may provide sufficient
explanation for the bases of their penalty determinations. Id. at 185–86.
We highlighted that a Judge’s penalty determination must “meet the requirements
of due process and fair and informed review.” Id. at 186. “Despite the
Commission’s clear mandate in  Sellersburg  and related cases,
and in its Procedural Rules, we have repeatedly found it necessary to  remand  cases for penalty assessments
because judges have failed to enter the requisite findings.” Hubb Corp. ,
22 FMSHRC 606, 612 (May 2000). [4]

Here, the Judge
failed to follow the Commission’s remand instructions properly and ignored the
law of the case. As discussed below, the Judge erred in his treatment of the
history of violations and good faith abatement criteria and did not
appropriately credit the operator for its low violation history and good faith
abatement when assessing the penalty. In addition, the Judge effectively
increased his negligence finding on remand to justify an increased penalty. Although the evidence supported the position that
several of the criteria did not suggest a statutory maximum penalty, the Judge
refused to credit the operator. Instead, he increased the penalty beyond the
maximum amount permitted under the Mine Act. [5]
Thus, the Judge committed several errors in his
treatment of the penalty criteria, each of which infected his penalty
assessment. Accordingly, we vacate the Judge’s penalty assessment. U.S.
Steel ,  6 FMSHRC at 1432 (assessments
“infected by plain error . . . are not immune from reversal.”).

This is the second time this
case is before the Commission. As such, we do not find it judicially efficient to
remand it to the Judge yet again solely for another reassessment. Given that
the Judge has made all the necessary findings of fact on section 110(i), we will
apply the criteria here and assess an appropriate penalty. [6]

1. Solar Sources’ History of Violations

In our prior
decision, the Commission noted that “[t]he record contains highly relevant
evidence regarding the operator’s violation history. Yet, the Judge did not
engage in any analysis and did not make any findings on the possible significance
of such evidence. The Judge merely references Government Exhibit P-2.” Solar
Sources I , 42 FMSHRC at 187. The Commission, however, found that the Secretary’s
“exhibit reveals a positive compliance record in that the operator had not had
a berm violation in six years and only two such violations in its entire
history. It did not have any unwarrantable failures in the 15 months preceding
the citation. In fact, the operator had received only 19 citations under
section 104(a) of the Mine Act, 30 U.S.C. § 814(a), for which it was penalized
a total of $13,276.” Id. at 187 n.8.  

The Judge
acknowledged that there was no evidence of any berm violation in this
operator’s recent history but declined to give any measurable weight to such
evidence, in part because the operator had two berm violations, some six to eight
years prior, in 2008 and 2010/11. ALJ Rem. Dec. , 42 FMSHRC at 353-54. He
reasoned that “ [b]y having any berm
violations in its history, and noting that those violations were not ancient by
any means, the Respondent should not be awarded with a penalty reduction on
that account.” Id. at 352.

The
Judge erred by giving greater weight to the two old berm violations than the
operator’s favorable recent 15-month record. The
operator had not had a berm violation in six years and only two such violations
in its history.

While there is no prohibition
against the Judge’s consideration of older violations per se, the record as a
whole does not support his characterization of the operator’s overall violation
history. First, the older berm violations were six and eight years old. The
Secretary did not present any record evidence on the details of those violations.
The scant mention of prior violations was by Solar Sources’ Safety Director
Steven Troy Fields. Fields merely noted that the operator had no berm
violations in its recent past and he stated his belief, without detail, that
the operator had only two berm violations in its history—one in 2008 and a
second in 2010 or 2011. [7]
Inspector Jason Noel testified that he did not find any prior berm violations
in the operator’s mine files. Tr. 272.

Without any record evidence about
the older berm violations, the Judge could not rationally evaluate and compare
or contrast the circumstances of those violations with the current violation. See
Sec’y of Labor on behalf of McClain v. Misty Mountain Mining, Inc. , 28 FMSHRC 303, 307 n.9 (Jun. 2006) (“Because this evidence
is not part of the record on review, it cannot be considered by the
Commission.”); see   also
30 U.S.C. § 823(d)(2)(A)(iii) (“no assignment of error by any party shall rely
on any question of fact or law upon which the administrative law judge had not
been afforded an opportunity to pass.”).

In the absence of any
meaningful evidence, the existence of two old violations should bear little to
no weight considering the operator’s overall violation history, especially
given their age compared to the operator’s relevant violation history. Thus,
the Judge erred by assigning them greater weight than the operator’s recent
compliance history without any basis in the record.

Second, the Commission has held that an
operator’s general violation history, not just its history of similar
violations, is relevant in considering this penalty criterion. Jim Walter
Res., Inc. , 28 FMSHRC 983, 995 (Dec. 2006) (“The
Commission has previously held that the reference in section 110(i) to an
‘operator’s history of previous violations’ refers to the operator’s general
history of previous violations, not just to violations of a kind similar to the
one giving rise to the penalty assessment.”). The Judge should have considered
the record evidence of the operator’s general violation history, including
non-berm violations. That evidence demonstrates this operator had a low
violation history.

Significantly, in the Commission’s initial
decision remanding the issue to the Judge to reconsider the evidence, the
Commission noted the operator’s “positive compliance
record.” 42 FMSHRC at 187 n.8. The evidence indicates that in the
preceding 15-month violation history, Solar Sources had
received only 19 citations for which the penalties totaled $13,276. All the
violations were assessed under MSHA’s regular assessment process—six of which
were assessed at the statutory minimum of $100, nine were under $200, and all
but three were less than $1,000, with the highest at $4,099. None involved the
standard at issue in this case, and none were designated unwarrantable
failures. Only nine of the sixteen were designated S&S. Ex. P-2. The
evidence supports that for a large mine, producing approximately 1.2 million
tons of coal annually, this is a low history of violations. ALJ Rem. Dec. ,
42 FMSHRC at 355; Gov’t Ex. A. The Judge failed to address this evidence. Instead,
he focused on the two older berm violations, despite the absence of evidence on
those particular violations.

Not only did the Judge fail
to make a quantitative analysis, but also he failed to make a qualitative
evaluation of the operator’s violation history. In Cantera Green , the
Commission held that in addressing the history of violations criterion, a Judge
should evaluate whether that history was high, moderate, or low. 22 FMSHRC 616, 623 (May 2000) . In his analysis, the Judge did not meaningfully
examine the entire violation history presented by the Secretary. As noted, the overwhelming
evidence of the operator’s recent history compels the conclusion that it had a
low history of violations. See Am. Mine Servs.,
Inc. , 15 FMSHRC 1830,
1834 (Sept. 1993) (remand not necessary when record supports no other
conclusion).

Despite this evidence, the
Judge summarily concluded that “only a small downward penalty adjustment is due
. . . . [T]hat is more than offset by consideration of the other five penalty
factors, each of which points in the opposite direction.” ALJ Rem. Dec. , 42
FMSHRC at 360. We disagree. The operator’s low violation history does not
support a maximum penalty. Thus, by not giving the operator any appreciable
credit for its low violation history, the Judge erred in making his penalty
assessment.

2. Solar Sources’ Good Faith Attempt to Achieve Rapid
   Compliance After Notification of the Violation

In
its initial decision, the Commission noted that the Judge failed to address the
good faith abatement criterion in his decision, relegating the criterion to
brief mention in a footnote and an erroneous statement that the parties had
entered a stipulation as to this criterion. Solar Sources I , 42 FMSHRC
at 187-88 (citing ALJ Dec. , 40 FMSHRC at 495 & n.15). The parties
continued to dispute whether the operator engaged in good faith in abating the
violation. Solar Sources I , 42 FMSHRC at 188 (citing Oral Arg. Tr.
37-38, 57).

On
remand, the Judge concluded that the operator displayed “zero good faith” and
was “entitled to no reduction in the penalty imposed because, to put it
simply, there was no good faith in attempting to achieve rapid compliance under
this penalty criterion. After all, the berm vanished upon its collapse, taking
the huge truck along with it. No rapid compliance was thereafter available.” ALJ
Rem. Dec. , 42 FMSHRC at 348, 361 (emphasis added). The Judge opined that
the operator’s admission that MSHA made it take certain measures post-accident
to abate the violation belied the fact that it attempted to achieve rapid
compliance after being notified of the violation. Id.

Again, the Judge
mischaracterized the operator’s efforts to achieve compliance with 30 C.F.R. §
77.1605(l) and should have credited the operator for its good faith. In
rejecting the notion that the operator exhibited good faith, the Judge
erroneously focused on the futility of actions to repair the original berm,
which the accident destroyed. The Judge completely ignored the operator’s efforts
post-accident to ensure a safe means of dumping, which ultimately resulted
in it re-designing the berm and dumping procedures.

Solar Sources’ Vice President
of Mining Matthew Atkinson testified that the operator redesigned how it dumped
gob and slurry into the pit and submitted a modified ground control plan after
the accident. The operator explained that the new process included a chute and a
berm with a secondary area below it which is also bermed off. Once material
accumulates, a dozer pushes the material into the pit, keeping the truck
operator behind two berms, approximately 20 feet away from the embankment edge.
Tr. 344-47; see also Ex. R-22 (modified Ground Control Plan).

The
destruction of the original berm does not negate a subsequent showing of good
faith. Obviously, the operator had to restore the worksite to resume operations
at this location. However, the operator took significant new actions to prevent
the occurrence of a similar accident.

Thus,
the operator acted promptly to rectify the violative condition and to redesign
procedures to prevent future accidents. Solar Sources complied with MSHA’s
directive to implement a new ground control system. Tr. 347-48, 516-17. The
fact that MSHA was involved in new procedures does not invalidate the operator’s
work to abate the violation in good faith and to achieve regulatory compliance.
Rather, it shows that the operator cooperated and complied with MSHA’s
directives.

The
Judge also erroneously discredited the steps taken by Solar Sources by pointing
to Safety Director Fields’ testimony that “MSHA made us submit a
ground control plan or revised ground control plan . . . . that’s what we had
to do. We had to revise that so it basically put[] at least
20-foot or minimum 20-foot between the berm and then another berm and then the
spoil bank.” ALJ Rem. Dec. , 42 FMSHRC at 348; Tr. 516-17. The Judge mischaracterized
this testimony as an admission or demonstration of a lack of good faith. No
evidence supports such an inference. See Bussen Quarries, Inc. v. Acosta ,
895 F.3d 1039, 1046-47 (8th Cir. 2018) (concluding
that the Judge’s inference was unreasonable because it was based on nothing
more than suspicion). Cooperating with MSHA and willingly complying with
its directions are good faith actions. Hence, the Judge’s characterization of
Solar’s post-accident actions is misplaced.

Moreover,
the Mine Act’s mandate that an operator abate a violation prior to adjudication
promotes consideration of an operator’s efforts to abate the violation. The
Mine Act identifies the penalty factor as “good faith of the person charged in
attempting to achieve rapid compliance after notification of a violation.” 30
U.S.C. § 820(i). Therefore, the Mine Act explicitly contemplates the actions
by an operator after a violation. This factor encourages and credits an
operator’s good faith in cooperation with MSHA to rectify dangerous or
violative conditions. To hold otherwise would discourage an operator’s compliance
efforts, which would be antithetical to the Mine Act’s safety-promoting purpose.
The operator’s cooperation or compliance with MSHA’s requirement to modify its
ground control plan and implement a new method for dumping, instead of arguing that
it should merely rebuild the berm, demonstrates good faith in achieving
compliance and safe operating conditions.

The Commission has recognized that good faith is a matter of
degree, similar to negligence. Coal River Mining, LLC , 32 FMSHRC 82, 97
(Feb. 2010) (“ The term ‘demonstrated’ makes the
question of the operator’s ‘good faith’ one that can be answered
in degree.” ). Ironically, in his initial decision, the Judge found
that Solar’s “post-incident action was laudable, and reflective of the serious
attitude [it] takes towards safety.” ALJ Dec. , 40 FMSHRC at 489. In this
regard, the Judge noted that Solar Sources modified the ground control plan for
the dumpsite and redesigned the slurry dumping process.

Simply stated, substantial evidence
does not support a finding that the operator failed to act in good faith in
attempting to achieve rapid compliance after notification of the violation. [8] Consequently, the Judge erred in
declining to credit Solar Sources for its good faith abatement. This error undermines
the Judge’s assessment.

3. Negligence

The operator argues that the
Judge erred in determining that its negligence was of the “highest order” in
assessing a penalty in this case. PDR at 31-32. The operator characterizes the
Judge’s statement as a new, enhanced finding on negligence akin to reckless
disregard. We agree and find that he erroneously relied on this new finding in
assessing a higher than maximum penalty. [9]

In explaining his
consideration of the penalty factors, the Judge stated that “[f]inding the
negligence to have constituted an unwarrantable failure, the negligence
associated with this violation was of the highest order for this penalty
factor and thus points to the highest penalty the Court may impose.” ALJ
Rem. Dec. , 42 FMSHRC at 358 (emphasis added).

In his initial
decision, the Judge concluded that the operator was highly negligent and that
this criterion weighed heavily in his penalty assessment. ALJ Dec. , 40
FMSHRC at 488, 495. Neither party appealed the Judge’s negligence finding nor
challenged his consideration of the evidence pertaining to this criterion to
the Commission after his initial decision. Thus, this finding was not before
the Commission in  Solar Sources I and was not remanded to the
Judge for reconsideration. It is the  law   of the  case . See Manalapan Mining Co. , 36 FMSHRC 849, 850 (Apr. 2014) (in the
second appeal after Judge’s decision on remand, the Commission “ conclude[d] that by reversing his initial finding of a
violation, the Judge violated the ‘law of the case’
doctrine”) ; Douglas
R. Rushford Trucking ,
23 FMSHRC 790, 793 (Aug. 2001) (holding that Judge’s original findings of gross
negligence and unwarrantable failure were not appealed, were not subsequently
remanded, and thus became the  law   of  the  case ) .

The law of the
case doctrine provides that when a decision is made at one stage of litigation
and not challenged on appeal, it continues to govern. See Concrete Works of
Colorado, Inc. v. City and Cnty. of Denver , 321 F.3d 950, 992 (10th Cir.
2003); United States v. Bell , 988 F.2d 247, 250 (1st Cir. 1993); see
also Pepper v. United States , 131 S. Ct. 1229, 1250 (2011) (stating
that “when a court decides upon a rule of law, that decision should continue to
govern the same issues in subsequent stages of the same case.”). Here, the law
of the case doctrine governs issues related to negligence.

The
Commission has held that “the Judge should take into account the degree of
operator negligence, which would be on a scale between low
negligence and reckless disregard, in assessing an appropriate penalty.” The American Coal Co. , 38 FMSHRC 2062, 2084 n. 32 (Aug. 2016). Thus,
there is a recognition of degrees of negligence ranging from low through
reckless disregard or gross neglect, and the Commission explicitly drew such
distinction in Lehigh Anthracite Coal LLC , 40 FMSHRC 273 (Apr. 2018). There,
it found that the Judge erred in finding high negligence rather than reckless
disregard. Id. at 279-83.

In this case, the
Judge changed his negligence determination in the opposite direction. Upon
remand, the Judge found negligence was of the “highest order,” by implication
raising the negligence level to reckless disregard. We understand the Judge’s desire
to reaffirm his initial assessment, but he may not increase his negligence
finding to do so. The Judge’s prior negligence finding was before him in the
limited capacity to consider and weigh all the penalty criteria in reassessing
the penalty. Hence, the Judge’s original finding
of high negligence is the law of the case and may not be disturbed on remand by
choosing to reclassify it as the “highest level” of negligence.

Because the
Judge inappropriately inflated the operator’s negligence to the highest level,
he erred by relying on his new finding to reassess the penalty. Thus, his
consideration of negligence on remand constituted another error that further infects
his penalty assessment.

4. Remaining Penalty Criteria

The Commission also instructed
the Judge to make necessary findings on the remaining penalty criteria—the
operator’s size and its ability to continue in business—and to “consider his
penalty criteria findings along with the record evidence, reassess a civil
penalty, and explain his rationale in an independent and reasoned manner.” Solar
Sources I , 42 FMSHRC at 188.

As to the operator’s size,
the Judge found that the evidence supported that the Shamrock Mine was a large
mine. ALJ Rem. Dec. , 42 FMSHRC at 353. He found that the operator did
not raise the argument that the penalty would affect its ability to continue in
business. Id. at 353-54. Solar Sources did not appeal the findings
regarding size or ability to stay in business. [10]
The Judge concluded that the two remaining criteria—violation history and
efforts to achieve compliance—did not warrant lowering his original penalty
assessment. Id. at 343, 348, 352.

5. The Judge’s Reassessment

After addressing the four
criteria he previously failed to consider, the Judge increased the penalty from
$68,300 to $69,000. Id. at 364. The Judge somewhat inflated his prior
finding of negligence to a finding upon remand that negligence was of “the highest
order,” justifying the highest penalty that could be imposed. Id. at 358.

The Commission has held that
a Judge may assign different weights to the section 110(i) penalty criteria. Knight Hawk Coal, LLC ,
38 FMSHRC 2361, 2373-74 (Sep. 2016) (“We have recognized that in assessing a
civil penalty, a Judge is not required to assign equal weight to each of the
penalty assessment criteria.”); Lopke
Quarries, Inc. , 23 FMSHRC 705, 713
(July 2001) (“Judges have
discretion to assign different weight to the various factors, according to the
circumstances of the case. Thunder Basin Coal Co. , 19 FMSHRC 1495, 1503 (Sept. 1997).” ). Moreover, Judges are “not
required to weigh the criteria in assessing the penalty in the same manner that
the criteria are weighed in the proposal of a penalty.” Jim Walter Res.,
Inc. , 36 FMSHRC 1972, 1980 (Aug. 2014). Ultimately, the Judge’s penalty
assessment must not be “ inconsistent with the
statutory criteria and the deterrent purpose behind the Act’s provision for
penalties.” Sellersburg ,  5
FMSHRC at 295.

The Judge’s numerous errors
in considering the penalty criteria taint his penalty assessment in this case. Not
only did the Judge make errors in findings of fact on several of the criteria, as
noted above, but he erred in his analysis of the impact of the criteria on the penalty
determination here. In assessing the penalty below, the Judge relied heavily on
MSHA’s rationale that the violation deserved a special penalty due to the
nature of the violation. Finding the violation to be “especially egregious,” the
Judge accepted that view based on negligence and gravity, which he determined to
be very serious on both accounts. ALJ Rem. Dec. , 42 FMSHRC at 336. Despite
this, he did not find the highest levels of negligence and gravity. The Judge did
not conclude that the evidence supported a finding of reckless disregard. Rather,
he found that the operator exhibited only high negligence. Nevertheless, he
concluded that the conduct of the operator warranted the highest penalty for
this berm violation. Based on these factors and with little to no regard for
the other penalty factors, the Judge imposed a penalty beyond the maximum and
higher than the penalty proposed by MSHA.

Accordingly, we vacate the
Judge’s penalty assessment. Under the circumstances of this case, we conclude
that remand is not necessary. The findings on the section 110(i) penalty
criteria are not in dispute. Rather, it is the appropriate application and
consideration of those factors that are disputed. In this instance, in the
interest of judicial economy, we will consider and impose an appropriate
penalty rather than remand the case to the Judge to reassess the penalty yet
again.

The penalty will not affect the
operator’s ability to stay in business. Considering the other penalty criteria
in a holistic and integrated manner , we recognize
that the violation’s gravity and negligence factors play important roles in
evaluating the violation to determine a penalty. We also must factor in the
operator’s size, history of violations and attempt to achieve rapid compliance
after notification of the violation. We are mindful, as set forth above, that
the purpose of the penalty is to deter rather than to punish. Here, the Judge exceeded
the maximum permissible penalty.

First, the inspector cited
gravity as highly likely to be fatal to one person. Without doubt, a violation
highly likely to cause a fatality is serious and militates toward a significant
penalty. Fortunately, a fatality did not occur.

Second, the Judge found
“high negligence,” not reckless disregard, which is a higher level of
negligence under MSHA’s penalty system and in the Commission’s case law. Again,
high negligence is serious and leads toward a significant penalty. As noted
above, however, in Lehigh Anthracite Coal , supra , the
Commission reversed a Judge’s finding of high negligence and substituted
reckless disregard. In doing so, the Commission remanded the case for a
redetermination of the penalty. On remand, the Judge increased the penalty. In Lehigh
Anthracite , the Commission recognized that high negligence did not manifest
a maximum degree of negligence. 40 FMSHRC at 283.  

Third, regarding size, the
parties stipulated that the operator produced approximately 1.2 million tons of
coal per year. That is a very substantial amount of coal, and as the Judge
found, the operator is large. At the same time, it does not place it within the
top 50 coal mines in the nation and, therefore, is not near the maximum in the
size category.

Therefore, in terms of
negligence, gravity, and size, it is reasonable to look toward the high end of
the penalty spectrum. In turning to other penalty factors, we must consider the
favorable history of violations and a good faith abatement effort. We do so
cognizant that the purpose of the penalty is to deter future violations. From
the foregoing, it is apparent that the Judge’s analysis erred in the factoring
of the history of violations and good
faith attempt to achieve rapid compliance. Those factors demonstrate good faith
efforts to comply in the past and good faith efforts to do even more in the
future to prevent violations. They cut against a need for a maximum penalty to
deter future violations. Efforts, monetary and otherwise, incurred in
implementing a rigorous system for preparing structurally sound berms are not
part, per se, of the civil penalty, but they are efforts intended to prevent/deter
violations. Thus, these measures support efforts to achieve compliance moving
the penalty away from the highest end of the penalty spectrum .

i.      History of Violations

As
demonstrated above, Solar Sources had a good record of compliance in the months
and years before this aberrational event. In the prior 15 months, despite its
size and regular inspections, it had been cited only 19 times for violations
with total penalties of less than $14,000. [11]  

Continuing
further, MSHA also examines an operator’s history of repeat violations. In this
regard, Solar Sources did not have any recent history of repeat violations. Its
history illustrates that this criterion should lean toward a minimal penalty
due to its good record of compliance.

We
have already explained the weakness of the Judge’s reliance on the scant testimony
of two prior berm violations six and eight years earlier with respect to which
no citation or other verifiable evidence was introduced. Thus, the operator’s
history of violations does not demonstrate the need for a maximum penalty to
deter future violations.

ii.      Good Faith in Attempting to Achieve Rapid Compliance
After Notification of a Violation

While MSHA’s penalty
assessment proposal criteria do not bind us, we note that the criteria allow up
to 10% - reduction for good faith abatement. See 30 C.F.R. § 100.3(f). The
Mine Act, however, speaks more broadly than abatement. Using the terminology “achieve
rapid compliance,” 30 U.S.C. § 820(i), the statute speaks to all activities an
operator undertakes to assure compliance with the regulation — that is, to use berms that prevent over-travel and overturning at dumping locations as
required by 30 C.F.R. § 77.1605(l).

Solar Sources
instituted a new and extensive system of berm workings to prevent future
events. The Judge refused to give these actions any credit regarding the civil
penalty because MSHA required this new system. The fact is that the operator
undertook extensive, entirely new procedures to prevent — that is, deter—any future over-travel of berms. Following Congressional intent toward the
purpose of deterrence, Solar Sources’ institution of a new and extensive system
of berm workings to prevent future events must be considered.

The Judge should have
credited the operator for its low history of violations and good faith
abatement and assessed a lower, not higher, penalty. The Judge erred in his
findings related to these criteria and in his consideration of the interplay of
the criteria. Having concluded that the evidence compels the conclusion that
the operator had a favorable violation history and demonstrated good faith in
achieving rapid compliance, a penalty less than maximum is warranted to
accomplish the deterrent purposes of a civil penalty. We accord significance to
these factors. In summary, the Judge’s finding of negligence and gravity support
a high albeit less than maximum penalty. On the other hand, the operator’s
history and good faith action to achieve compliance with the standard offset
the need for a maximum penalty to achieve deterrence. Balancing all factors, we
find the appropriate penalty is $40,000 .

III.

Conclusion

Accordingly, we vacate the Judge’s
decision and assess a penalty of $40,000 for Citation No. 9102704.

/s/ William I. Althen

William I. Althen, Commissioner

/s/
Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

Chair
Traynor, dissenting:

In our first decision in this
matter, Solar Sources Mining, LLC , 42 FMSHRC 181, 203 (Mar. 2020) ( Solar
I ), I concurred, in part, with my colleagues’ decision to vacate and remand
the Judge’s penalty assessment ($68,300) because he failed to first consider
each of the statute’s six penalty criteria, 30 U.S.C. § 820(i). Regretfully, I
was not able to join their decision in full because the majority also appended
a separate advisory opinion on an issue that was not actually before the
Commission on review. Solar I at 203-204.

Once again, I am
unfortunately unable to join my colleagues’ decision – this time, because they
usurp the discretionary role of our Judges in the assessment process,
arrogating to themselves the power to set a penalty.  

On remand, following our
first decision in this case, the Judge fully considered the six penalty
criteria at section 110(i) when making his discretionary decision to assess a
$69,000 penalty. This is fully consistent with section 110(i), 30 U.S.C. 820(i),
of the Mine Act, which states, in pertinent part:

In assessing civil monetary penalties, the Commission shall consider
the operator’s history of previous violations, the appropriateness of such
penalty to the size of the business of the operator charged, whether the
operator was negligent, the effect on the operator’s ability to continue in
business, the gravity of the violation, and the demonstrated good faith of the person
charged in attempting to achieve rapid compliance after notification of a
violation.

The Judge explained that the
$69,000 penalty assessment was due to the operator’s high negligence, history
of berm violations, and the extreme gravity of the accident. 1 He
found that the other penalty factors did not militate against imposing a high
penalty. 2 Specifically, although the Judge
concluded that the operator’s general history of violations of all safety
standards was “modest” he found its history of berm violations was aggravating.
Furthermore, the Judge found that the operator was large, producing over one
million tons of coal a year. The Judge recognized that Solar Sources did not
contend that the proposed penalty would affect its ability to stay in business.
Finally, the Judge found that Solar Sources did not demonstrate a good faith
attempt to achieve rapid compliance.

Solar Sources again
petitioned the Commission for review of the Judge’s assessment, and the
Commission granted review.

Until
this decision, we have regularly preserved our Judges’ wide discretion to apply
the section 110(i) penalty criteria in support of a penalty assessment. Our
precedents recognize that application of the six criteria and our Judges’ ability
to assign different weights to each can (and should) result in a wide range of
permissible assessments, with no single “correct” or “best” assessment decision
in any particular case. To that end, we have consistently applied an
intentionally limited appellate review to our Judges’ penalty assessment
decisions that has taken the form of a two-step process. The Commission:

[R]eview[s] the findings of fact on each of the
section 110(i) criteria under the substantial evidence standard, looking for ‘such
relevant evidence as a reasonable mind might accept as adequate to support [the
Judge’s] conclusion.’ Rochester & Pittsburgh Coal Co. , 11 FMSHRC
2159, 2163 (Nov. 1989). Then, [ ] review[s] the Judge’s assessment decision for
abuse of discretion, which must be ‘bounded by proper consideration of the
statutory criteria and the deterrent purpose underlying the Act’s penalty
assessment scheme.’ Sellersburg , 5 FMSHRC at 294.

Solar
I, 42 FMSHRC at 208.

My
colleagues ignore this well-settled standard of review. Instead, they make
penalty criteria findings de novo and then assess a new penalty
($40,000). Specifically, the majority makes the following de novo
findings: the violation history was low, 3 slip op. at 8, Solar
Sources demonstrated good faith in abating the violation, slip op. at 10, and
the mine was is not in “the top 50 coal mines in the nation and, therefore, is
not near the maximum [] size,” slip op. at 13. The majority weighs their new findings against the
Judge’s negligence 4 and gravity findings and independently concludes that
their own penalty criteria findings preclude imposition of a maximum penalty. The
majority concludes that $40,000 is an appropriate penalty for the violation.

There
are multiple problems with the majority’s decision. First, the majority errs by
reweighing the evidence to reach different penalty criteria findings. Donovan
ex rel. Chacon v. Phelps Dodge Corp. , 709 F.2d 86, 92 (D.C. Cir. 1983)
(Commission may not “substitute a competing view of the facts for the view [an]
ALJ reasonably reached.”); Island Creek Coal Co. , 15 FMSHRC 339, 347
(Mar. 1993) (“[i]t would be inappropriate for the Commission to reweigh the
evidence . . . or to enter de novo findings based on an independent
evaluation of the record.”).

Second, the majority’s
re-balancing of their criteria findings to reassess the penalty ignores the
discretion the Commission has historically accorded to Judges to assign weight
to the criteria when assessing penalties. See Knight Hawk , 38 FMSHRC at
2373-74 (“We have recognized that in assessing a civil penalty, a Judge is not
required to assign equal weight to each of the penalty assessment criteria.”); Lopke
Quarries , Inc. , 23 FMSHRC 705, 713 (Jul. 2001) (“[j]udges have
discretion to assign different weight to the various factors, according to the
circumstances of the case.” Thunder Basin Coal, Co. , 19 FMSHRC 1495,
1503 (Sep. 1997).”); see also American Coal Co., v. FMSHRC , 933 F.3d
723, 726 (D.C. Cir. 2019), aff’g 40 FMSHRC 1011 (Aug. 2018) (“we review
the ALJ's penalty calculation for an abuse of discretion.”).

In
particular, the Commission has held that it is not an abuse of
discretion for a Judge to weigh negligence and gravity more heavily than the
other criteria. Knight Hawk , 38 FMSHRC at 2373-74; Spartan Mining, Co .,
30 FMSHRC 699, 725 (Aug. 2008) (holding that a judge may increase penalties
significantly based on findings of extreme gravity and unwarrantable failure); see
also Jim Walter Res., Inc. , 36 FMSHRC 1972, 1979-80 (Aug. 2014) (holding
that weighing one factor more heavily was not an abuse of discretion); Thunder
Basin , 19 FMSHRC at 1503 (“there is no requirement that equal weight must
be assigned to each of the penalty assessment criteria”).

My
colleagues have improperly commandeered the Judge’s role to reduce his penalty
assessment. The majority’s decision marks a sharp and consequential departure
from well-settled precedent providing that we do not overturn the Judge’s
penalty assessment absent an abuse of discretion. In fact, my colleagues’
momentary reflection that their decision is irregular, slip op. 6 at n.6, is a
tacit acknowledgment of this departure. Of course, this decision in which a
Commission majority claims for itself the power to lower a penalty
(without finding a true abuse of discretion and instead of remanding to the
Judge) is now precedential authority a future Commission may use to increase
a penalty.

The result of my colleagues’
decision is to strip a layer of political insulation from the penalty
assessment process — taking the penalty assessment out of the hands of
life-tenured Judges and centralizing it in a Commission comprised of political
appointees serving six-year terms. I would not be surprised if my colleagues
re-think the wisdom of their position when the Secretary cites their decision
in a petition seeking review of a Judge’s otherwise sound discretionary
decision to impose a minimal penalty on a mine operator.

/s/ Arthur R. Traynor, III

Arthur R. Traynor, III, Chair

Distribution:

Mark Heath, Esq.

Spilman Thomas & Battle PLLC

300 Kanawha Boulevard, East

P.O. Box 273

Charleston, WV 25321-0273

[email protected]

Emelda Medrano, Esq.

Office of the Solicitor

U.S. Department of Labor

230 S. Dearborn Street, 8th Floor

Chicago, IL 60604

[email protected]

Archith Ramkumar, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th Street South, Suite 401

Arlington, VA 22202

[email protected]

April Nelson, Esq.

Office of the Solicitor

U.S. Department of Labor

Mine Safety and Health Division

201 12th Street South, Suite 401

Arlington, VA 22202-5452

[email protected]

Melanie Garris

U.S. Department of Labor

Office of Civil Penalty Compliance

Mine Safety and Health Administration

201 12th Street South, Suite 401

Arlington, VA 22202-5452

[email protected]

Administrative Law Judge William B. Moran

Federal Mine Safety Health Review Commission

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

[email protected]

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

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

[2] An “unwarrantable failure”
represents aggravated conduct constituting more than ordinary negligence. Emery
Mining Corp ., 9 FMSHRC 1997, 2001 (Dec. 1987).

[3] In imposing a $69,000 penalty, the Judge exceeded the
maximum penalty for the violation. At the time the violation was issued (June
2016), the statutory maximum penalty was $70,000. However, on July 1, 2016, in
accord with the Inflation Adjustment Improvements Act of 2015, MSHA issued an
interim change that decreased the maximum penalty for violations during the
relevant period from $70,000 to $68,300. 81 Fed. Reg. 43430, 43443-44 (July 1,
2016). In November 2016, MSHA assessed the penalty at the maximum amount of
$68,300. In January 2017, MSHA issued a final rule raising the maximum penalty
to $69,417 but stating that violations which occurred after November 2015 with
proposed penalties assessed between August 2016 and January 2017 (as with the
citation at issue) would be subject to penalties at August 2016 levels. 82 Fed.
Reg. 5373, 5374 (table) (Jan. 18, 2017). Accordingly, the maximum penalty for
the subject citation was $68,300.

[4] Commission Procedural Rule 30(a)
instructs Judges that their decisions “shall contain findings of fact and
conclusions of law on each of the statutory criteria and an order requiring
that the penalty be paid.” 29 C.F.R. § 2700.30(a).

[5] See n.3, supra . 

[6] The Commission typically leaves such determinations in
the hands of our Judges, but where a Judge has failed to follow the law of the
case, it has previously assessed a penalty where such action was deemed necessary
and prudent. See, e.g. , Douglas R.
Rushford Trucking , 24 FMSHRC 648, 653
(Jul. 2002) (Judge failed to adhere to remand
instructions so Commission vacated the Judge’s penalty and assessed $15,000
penalty) ; Steen employed by Ambrosia
Coal & Constr. Co. , 20 FMSHRC 381, 386
(Apr. 1998) (holding that, in the interest of a speedier resolution to
litigation, the Commission may  assess  a  penalty  rather than  remand  to the Judge for assessment);
Westmoreland Coal Co. , 8 FMSHRC at 492 (“determination of an appropriate penalty to be assessed
necessarily should have been affected by [the Commission’s determination] of a
lesser degree of negligence.”). 

[7] The entirety of the testimony about the
two old berm violations accorded great weight by the Judge occurred when Fields
was asked if he was aware of the last berm violation. His response was, “I
would have to look back. Excuse me, my voice is going, but I think we had
previously had two berm violations. One was 2008 and possibly, like, 2010 or ’11.”
Tr. 498. Thus, Fields did not testify with certainty to prior violations and
did not provide any evidence, if they occurred, regarding their location, facts,
or seriousness.

[8] When
reviewing administrative law judges’ 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)). In reviewing the whole record,
an appellate tribunal must consider anything in the record that “fairly
detracts” from the weight of the evidence that supports a challenged finding. Midwest Material Co. , 19 FMSHRC 30, 34 n.5
(Jan. 1997) (quoting  Universal
Camera Corp. v. NLRB , 340 U.S. 474, 488 (1951)).

[9] We reject the Secretary’s contention that Solar Sources
is barred from raising this argument on appeal. It did raise this argument in
its petition for discretionary review, which relates to a modified finding made
by the Judge for the first time in his remand decision. See 30 U.S.C. §
823(d)(2)(A)(iii) (“Review by the Commission shall be granted only by affirmative
vote of two of the Commissioners present and voting. If granted, review shall
be limited to the questions raised by the petition.”).

[10]
Likewise, the parties did not appeal the
findings on gravity. ALJ Rem. Dec. , 42 FMSHRC at 364.

[11] While the
ideal would be a history with no violations or penalties, this is not a
significant history, especially for a moderately large operator under current inspection
and enforcement.

1 The Judge found that the violation of the safety
standard at 30 C.F.R. § 77.1605(l) – which requires berms or other means to
prevent overtravel at dumping locations – was significant and substantial and
the result of an unwarrantable failure to comply. 42 FMSHRC 329, 358 (May 2020)
(ALJ).

Here, due to the
deficiency in the berm, the dump truck’s back wheel over-traveled the ledge of
the dump site, fell and flipped upside down into the slurry pit approximately
48 feet below. The driver escaped almost certain death by leaping from the
truck’s cab before it descended over the ledge. The jump and fall resulted in a
broken foot that required multiple surgeries to reconstruct using donated bone,
steel and screws.  

2 The majority incorrectly asserts
that the Judge’s $69,000 penalty exceeded the maximum penalty available for an
unwarrantable failure violation. Slip op. 3 n.3. The Judge issued his
independent penalty reassessment in May 2020, at which time the maximum penalty
assessment available was $69,417. 82 Fed. Reg. 5373, 5384 (Jan. 18, 2017). Thus,
the Judge did not err.

3 The majority states that the Judge failed to make a
qualitative evaluation of for the operator’s history of violations. Slip op. at

8. This is false. In fact, the Judge states “in the past two years Solar
   Sources has had a modest number of violations . . . the violation
   history does not especially aid the Respondent . . . [as] it has had prior berm
   violations.” 42 FMSRHC at 360 (emphasis added). The majority contends that the
   Judge erred in relying on testimony regarding the prior berm violations because
   the Secretary did not also enter the citations as exhibits. The majority cites
   no authority for their novel proposition that the uncontroverted testimony of
   an operator’s witness is not part of the record and cannot be relied upon by the
   Judge.  

4 The majority mischaracterizes the decision below,
claiming that on remand the Judge increased his negligence determination. This
too is demonstrably false. In fact, on remand the Judge explicitly reaffirmed
his March 2018 negligence determination. 42 FMSHRC at 337 (“the Commission did
not disturb . . . this Court’s determinations that the violation was . . . the
result of high negligence .”) (emphasis added), id . at 358 (the
“March 2018 decision detailed [my] findings regarding Solar Sources negligence.
Those findings . . . are reaffirmed here.”).