FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
Office of Administrative Law Judges
1331 Pennsylvania Avenue, N.W., Suite 520N
Washington, DC 20004
Office: (202) 434-9933 / Fax: (202) 434-9949
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SECRETARY OF LABOR MINE SAFETY AND HEALTH ADMINISTRATION (MSHA), Petitioner
v.
IRON CUMBERLAND, LLC, Respondent |
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CIVIL PENALTY PROCEEDING
Docket No. PENN 2023-0007 A.C. No. 36-05018-564091
Mine: Cumberland Mine |
DECISION APPROVING SETTLEMENT
Before: Judge Moran
This case is before the Court upon a petition for assessment of a civil penalty under Section 105(d) of the Federal Mine Safety and Health Act of 1977. The Secretary has filed a Motion to Approve Settlement and has set forth the factual basis for the proposed penalty. The Respondent has agreed to the proposed penalty amounts. As reflected in the table below, the originally assessed amount for the citations at issue was $19,503.00 and the proposed settlement amount is $13,773.00.
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Citation/Order |
MSHA’s Proposed Penalty |
Settlement Amount |
Other modifications to citation/order |
|
9258018 |
$774.00 |
$349.00 |
Modify Negligence to Low |
|
9580404 |
$840.00 |
$407.00 |
Modify Negligence to Low |
|
9258023 |
$774.00 |
$349.00 |
Modify Negligence to Low |
|
9257972 |
$563.00 |
$234.00 |
Modify Persons Affected to 1, down from 7 affected,
asserting only one miner would be expected to slip and fall; |
|
9580420 |
$234.00 |
$234.00 |
None |
|
9580423 |
$1,358.00 |
$610.00 |
Modify Negligence to Low; 55% reduction in penalty |
|
9580424 |
$407.00 |
$407.00 |
None |
|
9580425 |
$349.00 |
$133.00 |
Modify Injury or Illness to Unlikely, Modify Significant and Substantial Designation to No |
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9256357 |
$1,156.00 |
$1,156.00 |
None |
|
9256358 |
$1,156.00 |
$1,156.00 |
None |
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9256359 |
$563.00 |
$407.00 |
Modify Persons Affected to 5 |
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9580430 |
$1,358.00 |
$1,358.00 |
None |
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9581721 |
$1,471.00 |
$296.00 |
Modify Injury or Illness to Unlikely, Modify Significant and Substantial Designation to No; 80% reduction in penalty |
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9580436 |
$2,573.00 |
$1,156.00 |
Modify Negligence to Low; 55% reduction in penalty |
|
9257973 |
$481.00 |
$215.00 |
Modify Negligence to Low; 55% reduction in penalty |
|
9580439 |
$273.00 |
$133.00 |
Modify Negligence to Low; 51% reduction in penalty |
|
9581722 |
$3,841.00 |
$3,841.00 |
None |
|
$518.00 |
None |
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9580803 |
$518.00 |
$518.00 |
None |
|
9580806 |
$296.00 |
$296.00 |
None |
|
TOTAL |
$19,503.00 |
$13,773.00 |
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The Court has considered the Secretary’s Motion and approves it solely on the basis of the Commission’s decisions in The American Coal Co., 40 FMSHRC 983 (Aug. 2018) and Rockwell Mining, LLC, 40 FMSHRC 994 (Aug. 2018) for the standard to be applied by administrative law judges when reviewing such settlement motions under the Commission’s interpretation of section 110(k) of the Mine Act. Under those decisions, the Court’s role in reviewing settlement motions is circumscribed by those decisions, with the result that reasonable inquiry by the Court is not permitted.
For example, were it permitted to make inquiry, the Court would have questions regarding the claim in the motion with respect to Citation No. 92580404, as it implies that the inspector would be obligated to have seen the cited hazards shortly after the preshift examination, a patently unreasonable proposition. The motion asserts that the missing sliding guard and the damaged cutting wheel both could have occurred subsequent to the preshift exam. That both issues would exist pushes plausibility. Inspectors, aware that the absence of a preshift exam violation has been frequently invoked of late by mine operators, should consider whether a citation may be in order for inadequate preshift exams.
In fact, to his credit, the issuing inspector for a different violation, Travis Hamrick, did just that, citing the mine operator in Citation No. 9258023, for failing to note multiple hazardous conditions along the 75 Headgate longwall belt. That alleged, but now-admitted, inadequate preshift was associated with the issuance of two other citations flowing from the inadequate exam. Though the inspector’s citation made it clear that all three citations were related, the operator asserts again that the inspector did not observe the conditions at the time of the preshift exam itself. The Court lauds the MSHA inspectors for their efforts in protecting miners.
There are other, troublesome, results in the motion. For example, in Citation No. 9580423, the now-admitted violation involved a failure to provide a clear travelway of at least 24 inches on both sides of the 76 Tailgate belt. The standard invoked, 30 C.F.R. §75.1403, the statutory ‘Other Safeguards’ provision, has been cited 82 (eighty-two) times at this mine in the past two years. The motion’s resulting 55% reduction in the penalty is based upon designating the negligence from moderate to low. But low negligence anticipates “considerable mitigating circumstances.” The justification offered is that the mine had placed a pump in the area. If that is sufficient to constitute considerable mitigation, that is a low bar to meet such a classification.
Although the Court could discuss other reductions in this motion, as a last example, Citation No. 9581721 involved a now-admitted violation of the mine’s ventilation plan. That plan, Inspector Stephen A. Wilt noted, requires that all sprays on the longwall stage loader are to have a minimum opening of 3/32 inch, but the sprays at the discharge end of crusher in this instance only had openings of 1/16 inch. In short, the spray openings were more than two times insufficient.
However, the Secretary buys into the assertion that it’s a small difference and as such it would not appreciably contribute to overexposure of dust. Motion at 6. That’s an interesting take from the Secretary of Labor, as her role is to protect miners from dust and given that the minimum opening is to be 3/32. It strikes the Court as disconcerting that the Secretary’s representative would essentially agree that the more than half shortcoming for the sprays is no big deal. That may not be so comforting to the miners who have to inhale the dust.
And it is problematic that the Secretary’s attorney in effect says failure to comply with the minimum requirements imposed by MSHA transforms the violation from reasonably likely to unlikely to result in injury, and this even though it is indisputable that lung impairments for miners is an incremental consequence of dust exposure and that this mine has been cited 43 (forty-three) times for violating this standard in the past two years. Such a stance, to this Court, seems inimical to the Secretary’s role of protecting the safety and health of miners. It also seems fair to ask whether reducing the regularly assessed penalty from $1,471.00 down to a mere $296.00, runs counter to Congress’ clearly expressed intent that penalties are to be of sufficient magnitude to cause mine operators to calculate that compliance is less expensive than non-compliance. In the Court’s view, a $296.00 penalty favors the latter approach.
Accordingly, despite the Court’s expressed misgivings over some of particulars in these settlements, it is duty-bound to follow the Commission’s decisions on the subject of settlements. For that reason, per the Commission’s decisions on the scope of a judge’s review authority of settlements, the “information” presented in this settlement motion is sufficient for approval.
WHEREFORE, the motion for approval of settlement is GRANTED.
It is ORDERED that Citations listed in the table above are modified per that table and that the amounts for each citation are similarly reflected.
It is further ORDERED that, within 30 days of this order, the operator pay the penalty of $13,773.00, a sum reduced from the original regular assessment amount of $19,503.00, and representing a 29% overall reduction in the penalty. Upon receipt of payment, this case is DISMISSED.
/s/ William B. Moran
William B. Moran
Administrative Law Judge
Distribution:
Robert S. Wilson, Esq., Office of the Solicitor, Division of Mine Safety and Health, 201 12th Street South, Suite 500, Arlington, Virginia 22202-5450. Email: Wilson.robert.s@dol.gov
R. Henry Moore, Esq., Fisher Phillips, Six PPG Place, Suite 830, Pittsburgh, Pennsylvania 15222. Email: hmoore@fisherphillips.com