FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE, NW, SUITE 9500

WASHINGTON, DC 20001-2021

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

January 18, 2012

ORDER ACCEPTING APPEARANCE

ORDER DENYING SETTLEMENT MOTION

Before:            Judge Lesnick

            This case is before me under section 105(d) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(d). The Secretary of Labor’s Conference and Litigation Representative (“CLR”) filed a notice of limited appearance in this case. It is ORDERED that the CLR be accepted to represent the Secretary. Cyprus Emerald Res. Corp., 16 FMSHRC 2359 (Nov. 1994). The CLR has filed a motion to approve settlement. A reduction in the penalty from $5,000.00 to $100.00 is proposed. The CLR also requests that Citation No. 6501538 be modified to specify that 30 C.F.R. § 50.10(d) was violated, rather than 30 C.F.R. § 50.10(a) as set forth in the citation.

            Citation No. 6501538 states that, at 6:40 A.M. on September 20, 2010, an “unplanned” roof fall was discovered in Arch Materials’ Batavia Mine the dimension of which were 200 feet long, 40 feet wide, and 8 feet thick. The roof fall was reported to MSHA that same day at approximately 8:00 A.M. The citation further specifies that there was no likelihood of injury or illness as a result of the violation, that no persons were affected, that the violation was not significant and substantial (S&S), and that the violation was the result of the low negligence of the operator. In support of the settlement motion, the CLR states simply that he “determined that the violation was not subject to penalties defined in SECTION 5 of the MINER ACT of 2006.” Proposed Order. The CLR provides no further factual background.

            In 2006, in response to the tragic accidents at the Sago Mine and Aracoma Alma No. 1 Mine, Congress enacted the the Mine Improvement and New Emergency Response Act of 2006, Pub. L. No. 109-236, 120 Stat. 493 (“MINER Act”). Section 103(j) of the Mine Act requires a mine operator to notify MSHA in the event of an accident occurring at its mine. 30 U.S.C. § 813(j). Section 5(a) of the MINER Act amended Mine Act section 103(j) such that “the notification required shall be provided by the operator within 15 minutes of the time at which the operator realizes that the death of an individual at the mine, or an injury or entrapment of an individual at the mine which has a reasonable potential to cause death, has occurred.” Section 5(b) of the MINER Act amended Mine Act section 110(a) by adding a new subsection providing that failure to meet the requirements of section 103(j) relating to the 15 minute requirement “shall be assessed a civil penalty . . . of not less than $5,000 and not more than $60,000.” 30 U.S.C. § 820(a)(2).

            The Secretary’s regulation implementing the MINER Act amendments relating to the 15 minute requirement are less than a model of clarity. Section 50.10, the section under which the operator here was cited, provides:

The operator shall immediately contact MSHA at once without delay and within 15 minutes at the toll-free number, 1-800-746-1553, once the operator knows or should know that an accident has occurred involving:

                                    (a) A death of an individual at the mine;

(b) An injury of an individual at the mine which has a reasonable potential to cause death;

(c) An entrapment of an individual at the mine which has a reasonable potential to cause death; or

                                    (d) Any other accident.

30 C.F.R. § 50.10. Under the scant facts of this case which the CLR had provided me, the Secretary apparently reads this regulation to exempt “[a]ny other accident” from the 15 minute requirement of section 5 of the MINER Act. This clearly is not what section 50.10 provides since nothing in the regulation exempts subsection (d) from the 15 minute requirement. Insofar as section 50.10 as promulgated conflicts with Mine Act section 103(j), I will defer to the Secretary’s reading of her own regulation. “Any other accident” thus refers in section 50.10 to an accident that does not involve the death of an individual, or an injury or entrapment with “a reasonable potential to cause death,” and is thus exempt from the 15 minute requirement.

            Here, the accident at issue was a roof fall of mammoth and potentially lethal dimensions. The CLR, however, provides no facts upon which I could assess the likelihood of whether the roof fall could have potentially caused or led to an injury or entrapment with “a reasonable potential to cause death,” which the CLR presumably determined when he concluded that the operator violated section 50.10(d) rather than section 50.10(a). In the absence of any such facts, it is impossible for me to conclude that the CLR had a reasonable basis for his determination.

            Having considered the representations and documentation submitted in this case, and I therefore conclude that the proffered settlement lacks a sufficient evidentiary basis.

            WHEREFORE, the motion for approval of settlement is DENIED without prejudice.

                                                                        /s/ Robert J. Lesnick

                                                                        Robert J. Lesnick

                                                                        Chief Administrative Law Judge

Distribution:

Daniel J. Goyen, Conference & Litigation Representative, U.S. Department of Labor, MSHA, 515 West First Street, Room 333, Duluth, MN 55802

Thomas Belville, Plant Manager, Arch Materials LLC, 4438 State Route 276, Batavia, OH 45103

/tjr

Daniel J. Goyen

Conference & Litigation Representative

U.S. Department of Labor, MSHA

515 West First Street, Room 333

Duluth, MN 55802

Thomas Belville

Plant Manager

Arch Materials LLC

4438 State Route 276

Batavia, OH 45103