Secretary of Labor v. Cargill Incorporated

Plain-English summary

Cargill's underground salt mine used a return-air route as a secondary escapeway after blasting, when nitrogen dioxide readings reached as high as 8.2 parts per million. An ALJ vacated MSHA's citation after concluding that the gas level did not make the escapeway unsafe and that Cargill lacked fair notice. The Commission held that a safe escapeway must be free of nitrogen dioxide levels capable of causing harm, even if the effects are not immediately observable or do not prevent escape. It relied on the 5 ppm ceiling in the airborne-contaminant standard, health evidence, and Cargill's own withdrawal policy to find both a violation and adequate notice. The Commission reinstated the citation and remanded for findings on the significant-and-substantial designation and the appropriate penalty, which MSHA had proposed at $774.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 57.11051(a), 57.5001(a), 57.5001(c), and 57.5005
• Outcome: The vacatur was reversed, the citation was reinstated, and the case was remanded for S&S and penalty findings.
• Key point: An escapeway is not safe when airborne nitrogen dioxide exceeds levels known to cause harm, even if miners might still complete an evacuation.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

1331 PENNSYLVANIA AVE.,
N.W., SUITE 520N

WASHINGTON, DC
20004-1710

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SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA)
v.
CARGILL INCORPORATED
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Docket Nos. LAKE 2022-0285 LAKE 2023-0013
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BEFORE: Rajkovich, Chair; Jordan, Baker, and Marvit, Commissioners

DECISION

BY THE COMMISSION:

These consolidated contest and civil penalty
proceedings arise under the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq. (2024) (“Mine Act”). Citation No. 9669536 was issued
to Cargill, Inc. (“Cargill”) at its Cleveland Mine by the Department of Labor’s
Mine Safety and Health Administration (“MSHA”). The citation alleged that Cargill
failed to maintain a secondary escapeway in safe travelable condition because
the escapeway contained excessive levels of nitrogen dioxide (“NO2”)
in violation of 30 C.F.R. § 57.11051(a) (which provides in part that “[e]scape
routes shall be . . . maintained in safe, travelable condition”). MSHA designated
the violation as significant and substantial (“S&S”)[1] and proposed
a civil penalty of $774. Sec’y Ex. 1- 2.

Cargill contested the citation and the proposed civil
penalty before the Commission. After a hearing on the merits, a Commission
Administrative Law Judge issued a decision vacating the citation and
determining that the operator did not violate section 57.11051(a). 46 FMSHRC
667 (Aug. 2024) (ALJ). The Judge rejected the Secretary’s position that
concentrations of
NO2
above 5 ppm rendered the escapeway unsafe in violation of the standard. The
Judge further found that even if the Secretary’s interpretation of the safety
standard deserved deference, the operator lacked appropriate notice of that
interpretation. The Secretary petitioned the Commission for review, claiming
that the Judge’s determination that there was no violation was not supported by
substantial evidence, and that the Judge’s holding of lack of notice was
legally incorrect. PDR at 8, 16.

We hold that the operator violated section 57.11051(a)
because the secondary escapeway was not maintained in safe condition. We
further conclude that the operator was provided adequate notice of the
requirements of the standard. As established herein, the operator should have
been aware that exceeding the 5-ppm limit for NO2 would render the
secondary escapeway unsafe in violation of section 57.11051(a). Therefore, we
reverse the Judge’s decision, affirm Citation No. 9669536, and remand for further
findings consistent with this decision.

I.
__ __

Factual and
Procedural Background

A. Factual Background

The
Cleveland Mine is a large underground salt mine that produces road salt
products. Miners work one of three shifts in the morning, afternoon, or night. The
operator uses a mixture of ammonium nitrate and fuel oil to blast sections of
the face to loosen the salt. Miners collect the loosened salt, and a conveyor
belt carries the salt to an underground mill where it is crushed before it is
sent to the surface. A common byproduct of the aforementioned blasting is the
release of nitrogen dioxide, or NO2, a reddish-brown gas that can
harm miners at certain concentrations. 46 FMSHRC at 669; Tr. 36-37, 80, 281,
681, 902-03.

On July 26, 2022, MSHA Inspector Marty Morris,
accompanied by Jason Wood, the operator’s safety specialist, inspected the
underground area of the mine during the third shift. 46 FMSHRC at 671; Tr. 31,
62, 77. Earlier in the evening, blasting had occurred at the working face at
units 41 and 42. Tr. 42. At those units, there was a primary escapeway
containing intake air, and a secondary escapeway containing return air.[2] Sec’y Exs. 1
at 1, 3 at 2-3; Tr. at 40-41, 156, 727. Miners used the escapeways to evacuate
the mine during emergencies such as a mine fire. Tr. 59-61, 64. The NO2
generated by the operator’s blasting at Units 41 and 42 travelled south along
the return air route of the secondary escapeway. As it travelled south, the
concentration of NO2 decreased as the gas diffused through the mine.
Tr. 45-49, 51, 977.

Between July 26 and July 27, 2022, Inspector Morris
and Safety Specialist Wood took NO2 readings at three points along
the secondary escapeway. Tr. 45, 52. Inspector Morris travelled south after
each reading because travelling north, where the NO2 had not yet
been diffused, would have exposed him to higher NO2 concentrations. Tr.

51. At the first point, the inspector’s meter measured 10.3 ppm of NO2 while
    Wood’s meter measured 8.2 ppm. Tr. 47-48. At the second and third points,
    the inspector’s meter measured above 6 ppm and 4.2 ppm of NO2
    respectively, while Wood’s meter measured 5 ppm and close to 4.2 ppm of NO2.
    Tr. 52-53, 55. The operator’s own policies prohibit miners from working in an
    area which has a concentration of NO2 greater than 5 ppm. Tr.
    689-90, 770-74, 857. An operator’s employee conceded that such a concentration
    of NO2 would be unsafe for miners not wearing respirators while
    travelling through the secondary escapeway. Tr. 893-94.

On August 5, Inspector Morris issued Citation No. 9669536 for a violation of 30 C.F.R.

§
57.11051(a). Sec’y Ex. at 1 at 1. Specifically, the citation alleged that the
“secondary escapeway . . . was not properly maintained in a safe . . .
condition. . . [t]he post-blast gas readings . . . indicated [concentrations of
NO2] up to 8.2 ppm along the [secondary escapeway]

.
. . . Continued exposure to elevated levels of NO2 . . . would
likely lead to injury.” Id. The inspector required that miners be
“removed from the portions of the mine where [NO2] would prevent
them from working.” Id. In order to comply with the regulation, the
operator relocated the secondary escapeway from the return air course to an
intake air course parallel to the primary escapeway. Tr. 816, 860-62, 1108; 46
FMSHRC at 675.

B. __The Judge’s
Decision __

The Judge vacated Citation No. 9669536, rejecting the
Secretary’s reliance on the exposure limit for NO2 set forth in 30
C.F.R. § 57.5001(c) to support her assertion that any concentration of NO2
above 5 ppm would render the escapeway unsafe. 46 FMSHRC at
695-98. Rather, the Judge concluded that a minimum concentration of [NO 2]at or above 15 ppm would be necessary
to render the secondary escapeway unsafe.

On appeal, the Secretary claims that the Judge’s
decision that the secondary escapeway was safe is not supported by substantial
evidence. PDR at 8. However, she also makes a legal challenge, asserting that
“the way the judge reached the conclusion that NO2 under 15 ppm
renders an escapeway ‘safe’ ignores the weight of the evidence. . . as well as
the regulatory purpose of section 57.11051(a).” Id. at 12.

II.
__ __

Regulatory Background

While the operator was cited for a violation of 30 C.F.R. § 57.11051(a), the Secretary and the Judge also discussed two other regulations, 30 C.F.R. §§ 57.5001 and 57.5005. 46 FMSHRC at 692, 698.

Section 57.5001(a) provides the threshold limit for
airborne contaminants adopted by the American Conference of Government
Industrial Hygienists (“ACIGH”) as set forth in the Conference’s 1973
publication. Importantly, NO2 was given a ceiling designation by
ACIGH in 1973 of 5 ppm. Id. at 677; Sec’y Ex. 8 at 6. Section 57.5001(c)
provides that employees shall be withdrawn from areas when the concentration
exceeds this limit.

Section 57.5005 serves as a narrow exception to the
exposure limits of section 57.5001. It provides that “when necessary by the
nature of work involved [such as] occasional entry into hazardous atmospheres
to perform maintenance or investigation, employees may work for reasonable
periods of time in concentrations of airborne contaminants exceeding
permissible levels if they are protected by appropriate respiratory
protective equipment.” 30 C.F.R.

§ 57.5005 (emphasis added).

**III.

Disposition

A. The Judge Erred
When Interpreting the Term “Safe” in Section 57.11051.

Section 57.11051 does not define “safe” or
“travelable,” and does not provide any examples of unsafe or non-travelable
conditions. Instead, the regulation simply provides that “[e]scape routes shall
be . . . maintained in safe travelable condition.” 30 C.F.R. § 57.11051. Therefore,
the regulation is facially unclear as to whether airborne contaminants could
render an escapeway unsafe or not travelable.[5]

Broadly worded mandatory safety standards
are interpreted by the Commission in accordance with a reasonably prudent
person test. See Sunbelt Rentals, Inc., 38 FMSHRC 1619, 1626
(July 2016). As section 57.11051(a) does not define or provide examples of
“unsafe” conditions, the regulation is “drafted in general terms in
order to be broadly adaptable to the varying circumstances of a mine.” Id.
at 1627 (emphasis added), quoting FMC Wyoming Corp., 11 FMSHRC 1662,
1629 (Sept. 1989). Thus, the regulation’s reference to safe conditions is
appropriately considered under the reasonably prudent person test.[6] The test
provides that an “alleged violation is appropriately measured against whether a
reasonably prudent person, familiar with the factual circumstances surrounding
the allegedly hazardous condition, including any facts peculiar to the mining
industry, would recognize a hazard warranting correction within the purview of
the applicable standard.” 38 FMSHRC at 1626.

• *

First,
we must consider whether the term “safe” encompasses a requirement to avoid
excessive airborne contaminants in an escapeway. Importantly, other
mine
safety standards specifically limit a miner’s exposure to airborne contaminants
such as NO2 to ensure healthful working conditions. See 30
C.F.R. §§ 57.5001, 57.5005. In fact, Inspector Morris testified
that in other mines, miners do not work underground immediately after blasting
so that they are protected from [NO 2]. Tr.
27-28, 175. Therefore,
a reasonable operator would interpret the term “safe” in section 57.11051 as
encompassing a requirement to avoid excessive NO

Second, we must consider what types of
adverse health effects in escapeways are inconsistent with the term “safe,” and
the minimum concentration of NO2 which would cause such effects. The
Judge recognized that “the requirement that an escapeway be ‘maintained in
safe, travelable condition’ is ‘genuinely ambiguous’ with respect to the
specific levels of airborne contaminants that may be present in the escapeway,
at least with respect to NO2.” 46
FMSHRC at 689. However, the Judge improperly interpreted “safe” to permit NO2 amounts
that are harmful even though they would not cause immediately observable
health effects. The Judge found that immediately observable health effects
occur at
NO2
concentrations 15 ppm or above. 46 FMSHRC at 698, 708. Section 57.11051
makes no distinction between short-term and long-term harm, or more serious and
less serious harm. 30 C.F.R. § 57.11051. A reasonably prudent miner would
interpret “safe” as protecting against adverse health effects resulting from a
miner’s exposure to excessive NO2, even if such harmful effects were
not immediately observable or did not result in the total incapacitation of the
miner.

We conclude that the Judge’s interpretation[—]that an escapeway remains in safe condition provided
that the NO2 concentration does not risk irreversible or other
serious health effects—is an erroneous interpretation of the standard. The
standard requires that for an escapeway to be safe it must be free of NO2 levels
that would cause harm.

B. The Judge Erred
When Determining that the Secretary Failed to Demonstrate that the Secondary
Escapeway Was Not Safe.

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)).

• *

As the Judge recognized, the parties did not dispute
that, between July 26 and July 27, 2022, the night of the inspection, the
existing concentrations of NO2 were as high as 8.2 ppm in at least
one part of the secondary escapeway. Tr. 700-01; Sec’y Ex. 1; 46 FMSHRC at 677.
Substantial evidence does not support the Judge’s finding that exposure to 8.2
ppm of NO2

is safe and without resultant harm.

Instead, there is ample evidence in the
record that such exposure could result in adverse health effects. Dr. Michelle
Schaper, an MSHA toxicologist, documented that “[t]here are serious health-related
effects of inhalation exposure to NO2, at and above . . . 5 ppm.” Sec’y
Ex. 8 at 7.[7] She
testified that a miner could encounter sensory irritations including burning
and tearing of his eyes, nose, and throat, and choking. She also testified that
NO2
could
affect the deepest part of the lung, causing fluid to move into the lungs, i.e.,
pulmonary edema. Tr. 498-99. In discussing Dr. Schaper’s testimony, the Judge
erroneously focused on when adverse health effects would impair escape. See
46
FMSHRC at 698 (“There is no
evidence . . . beyond Dr. Schaper’s testimony[8]
that exposure to 5 ppm [of] NO2, over the comparatively shorter
period of a mine evacuation, would impair a miner’s escape.” (emphasis
added)). Notably, walking through the escapeway could take an hour
to an hour and a half, exposing miners to NO2 for long periods. It
can take 15 to 45 minutes to drive through the escapeway to the exit.

Dr. Schaper’s testimony demonstrates that
during the MSHA inspection, the concentration of 8.2 ppm of NO2 would
result in some adverse health effects to a miner, even if these effects were
not immediately observable and the miner was ultimately able to evacuate the
mine. This factual testimony is consistent with the ceiling limit of 5 ppm of NO2 in a
mine, adopted by MSHA. In summation, the record compels the conclusion that the
secondary escapeway, during the MSHA inspection, contained an unsafe
concentration of NO2.

C. __The
Secretary’s Mandatory Safety Standards Do Not Permit Reliance on Personal
Protective Devices to Render the Escapeway Safe. __

The Secretary’s regulations provide a narrow exception to the exposure limits. Section 57.5001 provides that the limits apply “[e]xcept as permitted by § 57.5005,” which in turn states that:

Control
of employee exposure to harmful airborne contaminants shall be, insofar as
feasible, by prevention of contamination, removal by exhaust ventilation, or by
dilution with uncontaminated air. Where accepted engineering control measures
have not been developed or when necessary by the nature of work involved (for
example, while establishing controls or occasional entry into hazardous
atmospheres to perform maintenance or investigation), employees may work for
reasonable periods of time in concentrations of airborne contaminants exceeding
permissible levels if they are protected by appropriate respiratory
protective equipment.

30 C.F.R. § 57.5005. We note that the very terms of the exception indicate that the presence of airborne contaminants constitute hazardous conditions. Respirators would not be necessary in an area where there were no hazards. As a result, the language of the exception belies the operator’s argument that the escapeway could be considered safe while having high levels of airborne contaminants.

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); Consolidation Coal Co., 15 FMSHRC
1555, 1557 (Aug. 1993). In this regard, section 57.5005 does not countenance
regular use of personal protective equipment in lieu of engineering controls to
protect against airborne contaminants. Instead, it provides only a narrow
exception in limited circumstances. The instant situation does not fit within
this narrow exception for two reasons.

First, it is clear that the exception only applies in limited situations where miners must set up engineering controls in the first instance or conduct investigations or maintenance in areas where engineering controls are usually not required because miners are not present (for instance in a sealed off area). Those circumstances are not present here.

Second, as the Judge himself noted, “section 57.5005 .
. . is couched throughout in terms of a miner’s ‘work.’” 46 FMSHRC at 699. The
clear terms of section 57.5005 provide for an exception to section 57.5001 only
when miners work, not when they seek to escape a mine emergency by utilizing
the secondary escapeway. Section 57.5005 allows miners to perform tasks in
hazardous conditions if they are “protected by appropriate respiratory
protective equipment.” However, in Consol Penn Coal Co., 39 FMSHRC 1893,
1901 n.17 (Oct. 2017), we held that “the vagaries of human conduct cannot be
ignored.” In a chaotic emergency, miners who forget to use their respirators
when evacuating through the secondary escapeway are arguably not “protected” by
“appropriate respiratory protective equipment.”[9]
The respirator exception in section 57.5005 is inapplicable to the facts.

D. The Judge Erred in
Finding that the Operator Lacked Notice.

The test for notice is “whether a reasonably prudent
person familiar with the mining industry and protective purpose of the standard
would have recognized the specific prohibition or requirement of the standard.”
Sunbelt Rentals, Inc., 38 FMSHRC at 1627. We consider
“whether the operator would have been aware of the requirement of the standard
because of past case precedent.” Id. In the past, we have used one mine
safety standard to interpret another. Solar Sources, Inc., 37
FMSHRC 218, 221 (Feb. 2015). We find that a reasonably prudent operator would
have been aware that MSHA’s mandatory safety standards effectively mandate the
withdrawal of miners when NO2 concentrations exceed 5 ppm. See
30 C.F.R. §§ 57.5001(a), (c).

Consequently,
the operator would have been aware of the specific prohibition of section
57.11051—that miners cannot work underground when the secondary escapeway
contains over 5 ppm of NO2 (the limit in section 57.5001). Moreover,
there was comprehensive testimony during the hearing that the operator had an
internal policy whereby it required miners to withdraw, for safety reasons,
from any areas in the mine which had a concentration of NO2 greater
than 5 ppm. Tr. 116, 689-90, 770, 772, 774, 857. Therefore, the operator was
aware, before the MSHA inspection, that NO2 concentrations which
exceeded 5 ppm were hazardous.[10], [11]

IV.
__ __

** Conclusion**

We hold that Cargill violated section 57.11051(a)
because the concentration of NO2 in the secondary escapeway during
the MSHA inspection created an unsafe condition. We also conclude that the
operator was provided adequate notice of the requirements of the standard. Therefore,
we reverse the Judge’s decision vacating Citation No. 9669536, find a violation
of the safety standard, and remand for further findings consistent with this
decision. On remand, the assigned Judge[12]
must determine the appropriate penalty amount after resolving any outstanding
issues, such as the “significant and substantial” nature of the violation.

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Chair

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

/s/ Moshe Z. Marvit

Moshe Z. Marvit, Commissioner

Distribution:

R. Brian Hendrix

Husch Blackwell LLP

1801 Pennsylvania Ave., N.W., Suite 1000

Washington, D.C. 20006-3606

[email protected]

Thomas Paige, Esq.

U.S. Department of Labor

Office of the Solicitor

Division of Mine Safety and Health

200 Constitution Ave., N.W., Suite N4420-N4430

Washington, D.C. 20210

Paige.Thomas.A@dol.gov

Melanie Garris

US Department of Labor/MSHA

Office of Assessments, Room N3454

200 Constitution Ave NW

Washington, DC 20210

[email protected]

Acting Chief Judge Micheal G. Young

Office of the Chief Administrative Law Judge

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, 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.” 30
U.S.C. § 814(d)(1).

[2] An “intake” is
any underground roadway/airway through which fresh air is conducted to the
working face. Intake, Dictionary
of Mining, Minerals and Related Terms (2d ed. 1997) (“DMMRT”). A
“return” is any airway which carries the ventilating air outby (i.e., out
of the mine). Return, DMMRT at 919.

[3] The Judge found
that “[t]here is no evidence in the record beyond Dr. Schaper’s testimony that
exposure to 5 ppm NO2, over the comparatively shorter period of a
mine evacuation, would impair a miner’s escape.” 46 FMSHRC at 698.

[4] The operator uses
Ocenco EBA 6.5 self-contained self-rescuers which protect miners from hazardous
concentrations of NO2 by providing a fixed amount of oxygen to
miners. 46 FMSHRC at 674; Sec’y Ex. 9 at 6 (illustration of Ocenco respirator).

[5] On appeal, the
operator implies that the regulation might be interpreted only to require that
there be no physical obstacles, such as a fallen rock, in the escapeway. Cargill’s
Resp. Br. at 22. Section 57.11051 requires that an escapeway be maintained in
both “safe” and “travelable” condition. 30 C.F.R. § 57.11051. However, if both
safe and travelable simply mean an absence of physical obstacles, then “safe”
would appear to become superfluous next to travelable. We also note our
precedent holding that “a fundamental rule of construction is that effect must
be given to every part of a . . . regulation, so that no part will be
meaningless.” Daanen & Janssen, Inc., 20 FMSHRC 189, 193 (Mar.
1998).

[6] In Ideal
Cement Company, 13 FMSHRC 1346, 1350-51 (Sept. 1991), we applied the
reasonably prudent person test to the phrase “affecting safety.” We note that
the Dictionary of Mining, Minerals and Related Terms uses terminology similar
to the Commission’s reasonably prudent miner test, defining “safe” as “in
general use among employers of ordinary caution and prudence in the same line
of business under the same circumstances.” Safe, DMMRT at 953 (defining
safe in the context of safe appliances); see also Mach Mining, LLC, 40
FMSHRC 1, 11 (Jan. 2018). The DMMRT, while not always dispositive, is a
“recognized authority for [technical] usage.” Wolf Run Mining Co., 32
FMSHRC 1669, 1685 (Dec. 2010).

[7] Similarly, in
response to a question asking “what [will be the] effects [of being] exposed to
[NO 2]levels above 5 ppm,” Dr. Schaper
testified that “over 5 ppm . . . that’s where you can start to see these
[sensory and pulmonary] effects.” Tr. at 497-99

• *

[8] We note that the
ALJ provided no explanation for his decision to discredit Dr. Schaper’s
testimony nor did he cite to any countervailing evidence that undermined her
testimony. As noted infra, Dr. Schaper’s testimony was consistent with
the ACGIH determination.

[9] This gets to the
heart of an axiomatic principle of the Mine Act which we have emphasized to the
point of exhaustion: the existence of a redundant safety measure is irrelevant
to the existence of a violation. See Black Beauty Coal Co., 38 FMSHRC
1307, 1313 (Jun. 2016).

[10] Cargill argues
that MSHA’s prior failure to cite the operator for similar conditions affected
its notice. Cargill’s Resp. Br. at 21-23. However, the Fifth Circuit rejected
an operator’s claim of inadequate notice in similar circumstances, finding that
“inconsistent enforcement is no[t an] excuse” and that the operator had
adequate notice based on a prior Commission decision. Cactus Canyon
Quarries, Inc., 64 F.4th 662, 666 (Apr. 2023). Similarly, here, the
operator had notice of the Commission’s holding that case precedent can provide
notice, and of the Commission case precedent using one mine safety standard to
interpret another.

[11] The operator, on
appeal, raises two constitutional issues regarding the Commission’s authority
to assess penalties, and the President’s ability to remove Commissioners of the
Commission. Cargill’s Resp. Br. at 24-27. We decline to reach these arguments
because Cargill failed to properly raise them.

• *

Cargill failed to raise its constitutional arguments
in a petition for discretionary review or during the hearing before the Judge
and did not explain its failures to do so. Instead, it raised these issues for
the first time in its appellate brief responding to the PDR. Cargill’s Resp.
Br. at 24, 27. Further, Cargill did not allege, let alone demonstrate, good
cause for its failure to raise the issue below. We decline to review the
constitutional issues belatedly raised by Cargill in its appellate response
brief. See Sunbelt Rentals, Inc., 42 FMSHRC 16, 21 (Jan. 2020);
30 U.S.C.

§ 823(d)(2)(a)(iii).

[12] The Judge who
presided over this matter has since retired.