FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

Office of Administrative Law Judges

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001

(202) 434-9973

October 25, 2011

   DECISION ON REMAND

Before:            Judge Weisberger

I.         Introduction

            On September 2, 2009, a decision was issued in the above proceeding finding, inter alia, that Cumberland Coal Resources LP (“Cumberland Coal”) violated 30 C.F.R. § 75.380 (d)(7)(iv) as alleged in the four citations at issue, that the violations were not significant and substantial (“S&S”), and that a penalty of $3,000 was appropriate for each of the violations. Cumberland Coal Resources, LP (“Cumberland Coal I”), 31 FMSHRC 1147 (Sept. 2009). Subsequently, the Secretary filed a petition for discretionary review which was granted by the Commission.

            On October 5, 2011, the Commission issued a decision which reversed the above decision regarding S&S, and remanded “for reassessment and reevaluation of the penalties.” (Cumberland Coal (“Cumberland Coal II”) 33 FMSHRC __, slip. op., at 15, (October 5, 2011).

II.       Reassessment and reevaluation of the penalties

            A.        The initial finding in Cumberland Coal I, supra regarding the level of gravity

            Cumberland I, supra, discussed the gravity of the violation, as follows:

                        As set forth above, . . ., I found that the violations were not significant and substantial based on the lack of evidence that an injury-producing event was reasonably likely to have occurred. As such, an injury of a reasonably serious nature was not reasonably likely to have occurred. However, I note [the inspector’s] testimony that, in the event of a [fire] or explosion, due to the manner in which the lifeline was located, miners would either be delayed or prevented from using it to escape, which could result in a fatal injury due to carbon monoxide poisoning. (See Tr. 158) This opinion was not impeached or contradicted. Thus, within this context, I find that the level of gravity was more than moderate. 31 FMSHRC supra at 1164

            B.        Reassessment and reevaluation of gravity

             I take cognizance of the Commission’s holding in Cumberland Coal II, supra, that the violation was S&S. This would appear to include a finding that an injury producing event, and an injury of a reasonably serious nature were reasonably likely to have occurred. Thus, in light of the Commission’s holding, I am constrained to find, upon reconsideration, that the level of gravity was high.

            C.        Discussion regarding the remaining penalty factors

            Cumberland Coal II, supra, does not discuss any of the other penalty findings in Cumberland Coal I, supra. I, thus, find that Cumberland Coal II, supra, does not mandate me to reconsider any of the penalty findings in Cumberland Coal I, supra, other than gravity. As such, I reiterate the findings and rationale set forth in Cumberland Coal I, supra regarding all penalty findings except gravity, especially the placement of “considerable weight on the low level of the operator’s negligence.” Cumberland Coal I, supra, at 1166. Considering all the above, especially the finding, upon reevaluation, of the increased level of gravity, I find that a total penalty of $4,000 is appropriate for each of the violations found in Cumberland Coal I, supra.

ORDER

            It is ordered that Respondent shall within 30 days ,pay a penalty of $4,000.00 for each of the violations of Section 75.380(d)(7)(iv), reduced by any amounts previously paid for these violations in compliance with the Order issued in Cumberland Coal I, supra.

Avram Weisberger

Administrative Law Judge

Distribution (via Certified Mail Returned Receipt Requested):

Paul A. Marone, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center, Suite 630E, 170 S. Independence Mall West, Philadelphia, PA 19106

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty Avenue, Pittsburgh, PA 15222

/cmj