FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
7 PARKWAY CENTER, SUITE 290
875 GREENTREE ROAD
PITTSBURGH, PA 15220
TELEPHONE: 412-920-7240 / FAX: 412-928-8689
SECRETARY OF LABOR,
MINE SAFETY AN D HEALTH
ADMINISTRATION (MSHA) obo
PACER MINERALS, LLC,
Docket No. CENT 2023-0058
MSHA No.: DENV-CD-2023-01
Mine: Pink Monster
Mine ID: 39-01653
3. My investigation of this case, which included witness interviews and a review of documents that Pacer provided, disclosed the following:
A. At all relevant times, Pacer operated the Pink Monster Mine near Pringle, S.D. (the “Mine”). MSHA has inspected Pacer’s operations on numerous occasions and Pacer is an “operator” under Section 3(d) of the Mine Act.
B. Pacer’s products, which include feldspar and mica, enter commerce, or its operations or the Mine’s products affect commerce.
C. Porter was, at all relevant times, employed as a heavy equipment operator by Pacer and was, therefore, a “miner” under Section 3(g) of the Mine Act.
D. On October 24, 2022, Porter timely filed a discrimination complaint with MSHA alleging that Pacer discharged him in violation of section 105(c) of the Mine Act.
4. Porter’s discrimination complaint arose from the following circumstances:
A. Porter worked for Pacer as a safety manager beginning in August 2021. At the time of his discharge, he worked 40 hours per week and earned $25.00 per hour as a heavy equipment operator.
B. In the fall of 2022, Pacer assigned Porter to work at the Mine after he had worked at another of the company’s mines, the White Elephant, that Pacer subsequently closed.
C. On September 15, 2022, Porter and a colleague, Mark Hughes (“Hughes”), used heavy equipment to clear blasted overburden out of the Mine’s pit. Unbeknownst to them, they worked near where Pacer’s blasting contractor, Century Blasting Service, LLC (“Century”), had set explosives in six holes for blasting. Mine Manager Tony Boggs (“Boggs”) knew that the explosives were present but did not tell Porter. Instead, he directed them to work away from the explosives’ location without explaining why. Porter unwittingly worked near undetonated charges for several hours.
D. The explosives remained from an earlier blast on Pink Monster’s upper level. Century drilled and loaded holes for two shots, one above the other. However, the lower level holes – near where Porter and Hughes worked – were not tied into the blast sequence of the upper level holes. Neither Pacer nor Century noticed that this had occurred.
E. Porter reported this incident to Pacer General Manager Ryan Fredsall (“Fredsall”) on September 22, 2022.
F. Fredsall and the company’s human resources director/accountant, Tamera Sutherland, investigated the incident but did not discipline anyone.
G. On September 30, 2022, Pacer laid off Porter.
H. Porter did not work at the Mine again.
Dec. of Daniel Scherer, December 14, 2022 (Ex. “1” to App. For Temp. Reinst.)
Ryan Fredsall, General Manager, Pacer Minerals, 25429 U.S. Highway 385 Custer, S.D. 57730 (firstname.lastname@example.org)
Matthew B. Finnigan. Esq., Office of the Solicitor, 1244 Speer Blvd., Suite 515 Denver, CO 80204-3516 (email@example.com)
George Porter, 12066 Hoover Court, Custer, SD 57730, (firstname.lastname@example.org)
 The Act’s legislative history suggests that a complaint is not frivolously brought if it “appears to have merit.” S. Rep. No. 181, 95th Cong., 1st Sess. 36-37 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong. 2nd Sess., Legislative History of the Federal Mine Safety and Health Act of 1977, at 624-25 (1978). In addition to Congress’ “appears to have merit” standard, the Commission and the courts have also equated “not frivolously brought” to “reasonable cause to believe” and “not insubstantial.” Sec'y of Labor on behalf of Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff'd, 920 F.2d 738, 747 & n.9 (11th Cir. 1990).
 “Substantial evidence” means “such relevant evidence as a reliable 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)).