FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

 

OFFICE OF ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC 20004-1710


 

December 14, 2017

SECRETARY OF LABOR

   MINE SAFETY AND HEALTH  

   ADMINISTRATION (MSHA),

                              Petitioner

 

                        v.

 

KINGSTON MINING, INC.,

                              Respondent

 

 

CIVIL PENALTY PROCEEDING

 

Docket No.:    WEVA 2017-11

A.C. No.:        46-08625-419948

 

Docket No.:    WEVA 2017-69

A.C. No.:        46-08625-422242

 

Docket No.:    WEVA 2017-119

A.C. No.:        46-08625-424401

 

Docket No.:    WEVA 2017-182

A.C. No.:        46-08625-426595

 

Docket No.:    WEVA 2017-201

A.C. No.:        46-08625-428887

 

Mine: Kingston No. 1

 

Docket No.:    WEVA 2017-162

A.C. No.:        46-08932-426598

 

Docket No.:    WEVA 2017-202

A.C. No.:        46-08932-28889

 

Mine: Kingston No. 2

           

DECISION APPROVING SETTLEMENT

 

Before:                        Judge Feldman

 

            This case is before me upon petitions for assessment of civil penalties under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d).  The Solicitor has filed a motion to approve settlement.  A reduction in penalty from $70,784.00 to $44,184.00 is proposed with respect to the 58 citations contained in these 7 captioned dockets that are the subject of the settlement agreement.  The motion reflects that the Respondent has agreed not to challenge the 58 citations, given the reduction in proposed penalty for each citation as well as the modification of 3 of the citations. In support of the proposed settlement terms, the parties have provided justifications for 11 of the penalty reductions and/or modifications.

 

 

For Citation No. 9116834 in Docket No. WEVA 2017-182, which was issued for impermissibly maintained filtering in the operator’s dust collection system, the Respondent argues that the gravity of the violation is overstated because the dust collection system had a secondary filtering system that was working properly. For Citation No. 9115771, also in Docket No. WEVA 2017-182, issued for an unsecured guard on a belt take-up unit, the Respondent argues that the degree of gravity alleged by the Secretary is excessive because the required guard was still in place, even if it was not secured. Taking into account the Respondent’s argument and the circumstances surrounding the violations, the Secretary has decided to reduce the likelihood of injury from “reasonably likely” to “unlikely” and to delete the S&S designations for each citation, with accompanying reductions in penalties.

 

For Citation No. 9115773 in Docket No. WEVA 2017-201, which was issued for an unsecured compartment door on a belt drive starter box, potentially exposing miners to an energized volt breaker and uninsulated electrical wires, the Respondent argues that the degree of gravity for the violation should be reduced because it was unlikely that an unqualified person would access the breaker box. Taking into account the Respondent’s argument and the circumstances surrounding the violation, the Secretary has agreed to reduce the likelihood of injury from “reasonably likely” to “unlikely” and to delete the S&S designation, with an accompanying reduction in penalty.

 

For Citation Nos. 9115091, 9115092 and 9115094 in Docket No. WEVA 2017-11, which were all issued for failing to properly calibrate belt fire detection systems so as to alert miners of hazards related to high carbon monoxide levels, the Respondent argues that all three violations occurred due to the utilization of an incorrect calibration kit, which could presumably affect the degree of the operator’s negligence.

 

For Citation Nos. 9115100 and 9115104 in Docket No. WEVA 2017-69, which were issued for an alleged failure to maintain self-rescuers (“SCSRs”) in functioning condition in vehicles/machinery, the Respondent would argue that the gravity is overstated because the miners carried additional SCSRs with them.

 

For Citation No. 9054405 in Docket No. WEVA 2017-119, issued for a failure to install a sphere alerting miners to the presence of a man door in a primary escapeway, which would facilitate their escape in the event of an emergency, the Respondent would argue that 14 persons were not reasonably affected by the lack of one sphere because there was a reflective sign on the door that could serve a similar function. With respect to Citation No. 9117224, also in Docket No. WEVA 2017-119, the Respondent questions the validity of the citation. The Secretary alleges the intake escapeway was unsafe for travel because there was an accumulation of mud and water under the lifeline. The Respondent asserts that the water would not have prevented safe passage, and assuming there was a violation, that it was not likely to result in injury.

 

For Citation No. 9116842 in Docket No. WEVA 2017-162, which was issued for a damaged trailing cable, the Respondent argues that the degree of negligence should be reduced because the evidence would not show how long the cited cut in the trailing cable was present, or that it was present at the time of the most recent weekly examination.

 

            The settlement amounts are as follows:

           

WEVA 2017-11

Citation/ Order No.

30 CFR

Penalty Assessed

Settlement

Other Modification(s)

9115086

75.1714-4(e)

$114.00

$114,00

None

9115089

75.1403

$2,214.00

$1,506.00

None

9115091

75.1103-8(c )

$783.00

$532.00

None

9115092

75.1103-8(c )

$783.00

$532.00

None

9115094

75.1103-8(c )

$783.00

$532.00

None

9115096

75.515

$3,303.00

$2,057.00

None

Total

 

$7,980.00

$5,273.00

 

 

WEVA 2017-69

Citation/ Order No.

30 CFR

Penalty Assessed

Settlement

Other Modification(s)

9010522

75.1403

$666.00

$441.00

None

9115100

75.1714-3(d)

$3,303.00

$2,180.00

None

9115104

75.1714-3(d)

$3,303.00

$2,180.00

None

9115105

75.1403

$2,214.00

$1,481.00

None

Total

 

$9,486.00

$6,282.00

 

 

WEVA 2017-119

Citation/ Order No.

30 CFR

Penalty Assessed

Settlement

Other Modification(s)

9054405

75.380(d)(7)(vi)           

$1,168.00

$787.00

None

9054406

75.380(d)(7)(vii)

$324.00

$210.00

None

9054407

75.380(d)(7)(vii)

(B)

$300.00

$195.00

None

9054409

75.1506(h)(2)

$722.00

$469.00

None

9117224

75.308(d((1)

$568.00

$373.00

None

9117225

75.308(d)(1)

$568.00

$373.00

None

9117226

75.308(d)(1)

$568.00

$373.00

None

9115763

75.333(c )(2)

$1,369.00

$890.00

None

Total

 

$5,587.00

$3,670.00

 

 

 

 

 

 

 

 

 

 

WEVA 2017-162

Citation/ Order No.

30 CFR

Penalty Assessed

Settlement

Other Modification(s)

9058516

75.1403          

$1,741.00

$1,149.00

None

9116842

75.517

$2,815.00

$1,864.00

None

9116843

75.1103-1(b)

$568.00

$373.00

None

9112192

75.400

$413.00

$272.00

None

9116845

75.400

$918.00

$606.00

None

9112195

75.1713-7(b)(1)

$1,265.00

$835.00

None

9112198

75.503

$524.00

$346.00

None

9116847

75.1100-3

$666.00

$474.00

None

9116848

75.604(b)

$2,815.00

$1,864.00

None

Total

 

$11,725.00

$7,783

 

 

WEVA 2017-182

Citation/ Order No.

30 CFR

Penalty Assessed

Settlement

Other Modification(s)

9060557

75.388(g)

$848.00

$500.00

None

9116834

72.630(b)

$1,369.00

$176.00

Gravity to unlikely and not S&S

9115294

75.1107-16(b)

$1,265.00

$722.00

None

9115771

75.1722(c )

$1,265.00

$154.00

Gravity to unlikely and not S&S

9115301

77.1102

$2,214.00

$1,343.00

None

9115298

75.515

$568.00

$273.00

None

Total

 

$7,529.00

$3,168.00

 

 

WEVA 2017-201

Citation/ Order No.

30 CFR

Penalty Assessed

Settlement

Other Modification(s)

9114904

75.202(a)        

$1,741.00

$1,149.00

None

9057116

75.1403

$918.00

$632.00

None

9115773

75.512

$4,199.00

$1,887.00

Gravity to unlikely and not S&S

9115779

75.604(b)

$2,815.00

$1,862.00

None

9115778

75.1714-4(e)

$1,369.00

$889.00

None

9115783

75.403

$1,484.00

$979.00

None

9115784

75.400

$380.00

$250.00

None

Total

 

$12,906.00

$7,648.00

 

 

 

 

 

WEVA 2017-202

Citation/ Order No.

30 CFR

Penalty Assessed

Settlement

Other Modification(s)

9112205

75.320(b)        

$568.00

$380.00

None

9112206

75.503

$1,078.00

$718.00

None

9116849

75.517

$2,815.00

$1,874.00

None

9116850

75.503

$1,078.00

$718.00

None

9112209

75.1101-8(a)

$276.00

$187.00

None

9112212

75.400

$380.00

$251.00

None

9112215

75.1107-16(b)

$1,265.00

$824.00

None

9112220

75.380(d)(7)(iii)

$994.00

$662.00

None

9112221

75.403

$615.00

$413.00

None

9112218

75.503

$446.00

$298.00

None

9112219

75.1403

$2,398.00

$1,595.00

None

9112225

75.1731(b)

$276.00

$191.00

None

9112222

75.503

$446.00

$296.00

None

9112224

75.512

$1,369.00

$910.00

None

9112228

75.1403

$783.00

$520.00

None

9112235

75.507-1(a)

$254.00

$169.00

None

9112236

75.507-1(a)

$254.00

$169.00

None

9112232

75.516

$276.00

$185.00

None

Total

 

$15,571.00

$10,360.00

 

 

 

The Commission is an “independent adjudicative body authorized to hear disputes arising under the Mine Act.” Energy West Mining Corp. v. FMSHRC, 40 F3d 457, 459 (D.C. Cir. 1994). As a threshold matter, settlement terms advanced by the parties do not constitute a dispute requiring Commission adjudication. However, Section 110(k) of the Act does provide that,     “No proposed penalty which has been contested before the Commission under section 105(a) shall be compromised, mitigated, or settled except with the approval of the Commission.”         30 U.S.C. § 820(k).

 

Although the Commission has the delegated authority to approve settlement agreements, it is not the Commission’s role to pass on the wisdom of a party’s decision to settle. By way of illustration, just as it is inappropriate for the Commission to question a mine operator’s decision to pay the total civil penalty initially proposed by the Secretary, it is equally inappropriate, absent extenuating circumstances, for the Commission to question the Secretary’s decision to accept a reduction in his proposed penalty.

 

It is said that “the baby should not be thrown out with the bathwater.” So too, proposed global settlements, and proposed settlement agreements for consolidated dockets involving a great many citations, should not be rejected simply because of dissatisfaction with the supporting rationale advanced by the parties, provided that the agreement, when viewed holistically, is consistent with the purpose of the Mine Act. The oversight question for the Commission is whether the agreed upon civil penalty is “sufficient” – not whether it is “sufficient enough.”

Thus, consistent with the provisions of section 110(k) of the Act, proposed comprehensive civil penalty settlement terms should be rejected by the Commission if they do not adequately achieve the deterrent effect required by the Mine Act’s enforcement scheme. See Black Beauty Coal Co., 34 FMSHRC 1856, 1869 (Aug. 2012) (holding deterrence is a basic principle underlying the statutory scheme of imposing civil penalties and “should infuse the Judge’s consideration of whether or not to approve a settlement”).

           

I am cognizant that the Secretary’s agreement to accept $44,184.00 in satisfaction of the 58 citations at issue is substantially less than the $70,784.00 civil penalty initially proposed. The Secretary has accepted this agreed upon reduced civil penalty despite the fact that 55 of the 58 citations at issue remain unmodified. Consequently, the Secretary has in essence agreed, in the interests of settlement, that the initial total civil penalty proposed may have been excessive.

 

In the final analysis, the proposed settlement terms require my approval as the presiding officer, rather than my agreement with the outcome of the parties’ settlement negotiations.

The settled disposition of the 58 citations at issue promotes judicial efficiency by avoiding adjudicative bottlenecks that interfere with the prompt disposition of more seriously contested cases. The agreed upon total civil penalty of $44,184.00 is not trivial and does not, on its face, undermine deterrence. Consequently, the parties’ settlement agreement shall be approved.

 

Having considered the representations and documentation submitted in this matter,

I conclude that the proffered settlement does not contravene the provisions of Section 110(i) of the Act.  WHEREFORE, the motion to approve settlement IS GRANTED, and pursuant to the parties’ agreement Kingston Mining IS ORDERED to pay the $44,184.00 civil penalty within 30 days of this Order in satisfaction of the 58 citations at issue.[1]  Upon receipt of timely payment, the captioned matters ARE DISMISSED.

 

 

 

 

                                                            /s/ Jerold Feldman

                                                                        Jerold Feldman

                                                                        Administrative Law Judge

 

 

 

Distribution:

                       

Robert S. Wilson, Esq. 201 12th Street South, Suite 401, Arlington, VA  22202-5450.

 

Arthur M. Wolfson, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty Avenue, Pittsburgh, PA 15222-1000

 



[1] Payment should be sent to the Mine Safety and Health Administration, U.S. Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.  Please include the Docket No. and A.C. No. noted in the above caption on the check.