**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

 

 
| SECRETARY OF LABOR

  MINE SAFETY AND HEALTH        

  ADMINISTRATION (MSHA),

                           Petitioner

 

                        v.

 

IRON CUMBERLAND, LLC,

                           Respondent                                                                                     |   |   | 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. 

 
| **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;**58% reduction in the penalty** |
| 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                                                       |
| 9256357            | $1,156.00                     | $1,156.00             | None                                                                                                                                               |
| 9256358            | $1,156.00                     | $1,156.00             | None                                                                                                                                               |
| 9256359            | $563.00                       | $407.00               | Modify Persons Affected to 5                                                                                                                       |
| 9580430            | $1,358.00                     | $1,358.00             | None                                                                                                                                               |
| 9581721            | $1,471.00                     | $296.00               | Modify Injury or Illness to Unlikely, Modify Significant  and Substantial Designation to No; **80%  reduction in penalty**                       |
| 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                                                                                                                                               |
| 9580802            | $518.00                       | $518.00               | None                                                                                                                                               |
| 9580803            | $518.00                       | $518.00               | None                                                                                                                                               |
| 9580806            | $296.00                       | $296.00               | None                                                                                                                                               |
| **TOTAL**          | **$19,503.00**                | **$13,773.00**        | ** **                                                                                                                                         |

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