**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.

 

CONSOL PENNSYLVANIA COAL

COMPANY, LLC,

                            Respondent                                                                                     |   |   | CIVIL  PENALTY PROCEEDING

 

Docket  No. PENN 2022-0129

A.C. No.  36-07230-561904

 

 

 

 

 

Mine: Bailey Mine |
|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|--------------------------------------------------------------------------------------------------------------------------------------------------------|

 

 

 

**DECISION APPROVING SETTLEMENT WITHSIGNIFICANT RESERVATIONS**

 

Before: JudgeWilliam Moran

 

This case is before theCourt upon a petition for assessment of a civil penalty under Section 104(d) ofthe Federal Mine Safety and Health Act of 1977. The Secretary has filed aMotion to Approve Settlement. The Respondent has agreed to the proposedsettlement. The originally assessed total amount for the citations at issue was**$9,036.00**and the proposed total settlement amount is **$1,897.00,reflecting a 79% (seventy-nine percent)**overall reduction, as reflected inthe following table: 

 
| 9205312                   | $6,898                          | $1,393                       | Citation  modified to moderate negligence; **80% reduction in penalty**      |
|---------------------------|---------------------------------|------------------------------|-------------------------------------------------------------------------------|
| 9204928                   | $1,069                          | $252                         | Citation modified to unlikely and  non-S&S; **76% reduction in penalty** |
| 9205356                   | $1,069                          | $252                         | Citation modified to unlikely and  non-S&S; **76% reduction in penalty** |
| **TOTAL REVISED PENALTY** | **Original total:  $9,036.00** | **Revised total: $1,897.00** | **79% overall reduction in penalty**                                          |

** **

**TheCitations in issue**

** **

**CitationNo. 9205312**

** **

Thiscitation invoked 30 U.S.C. §876(b), pertaining to “**Communication facilities;locations and emergency response plans**.” The section addresses telephoneservice or equivalent two-way communication facilities, which are to be approvedby the Secretary or his authorized representative. Such communicationfacilities shall be provided between the surface and each landing of mainshafts and slopes and between the surface and each working section of any coalmine that is more than one hundred feet from a portal. The cited subsectionaddresses the plan requirements.

 

Thesection 104(a) citation for this now-admitted violation stated:

** **

The Mine Operator failed to complywith their Approved Emergency Response Plan (Approved 9-11-2020), in that,there were no leaky feeder line (communication) or tracking tags installed inthe 2-K Working Section (009-0 MMU) Alternate Escapeway (number 3 entry of 2-K)from the loading point inby 8 crosscut outby to the 5 South Mains Right (K)Track at the number 80 crosscut (2420 feet in length). Therefore **there was noredundant communication between the Primary or Alternate Escapeways** and **nocommunication or tracking at all in the alternate escapeway** or **at theWorking Section refuge alternative/SCSR cache from the alternate escapeway**.After issuance of this citation, the Operator removed the persons from theworking faces to outby the loading point until the condition can be corrected. 

 

The Following statements are fromthe Approved Mine Emergency Response Plan and have not been complied with:

 

1. Page 1, Communication, 2.Coverage Area, line b.,- The system will also generally provide continuouscoverage along escapeways and a coverage zone approximately 200' feet inby andoutby strategic areas of the mine. Strategic Areas are fixed work locationswhere miners are normally required to work, section SCSR caches, workingsection power centers and manned belt transfers.

 

2.         Page 2., 6.,-Survivability, a. The post accident communication system will generally provideredundant signal pathways to the surface component. b.- Redundancy will beachieved by two or more systems installed in two or more entries, or one systemwith two or more pathways to the surface; provided that a failure in one systemor pathway does not affect the other system or pathway. c.,- Redundancy meansthat the system can maintain communication with the surface when a singlepathway is disrupted. Disruptions can include major events in an entry orcomponent failure.

 

3.         Page 3, Tracking System,1. Performance, aiii.,- Locate Miners in escape-way at intervals not to exceed2000 feet. iv.,- Locate miners within 200 feet of strategic areas. StrategicAreas are fixed work locations where miners are normally required to work,section mass SCSR caches, working section power centers and manned belttransfers. vii.,- Locate miners at the key junction in the escape-ways. viii.,-Locate miners within 200 feet of refuge alternatives. d.- The electronictracking system will be installed in active daily traveled areas of the minePrimary and Secondary escapeways.

 

4.         Page 5, 8. Maintenance,d. In the event of system or component failures, the miners will be notified ofthe problem. The affected miners will begin manual zone tracking and continueto advise the surface communication facility of their travel until the systemis repaired. Repairs will start immediately if there is a loss in trackingcapabilities. e.- The system will be examined weekly to verify that it is maintainedin proper operating condition and the results of the examination will beentered in a record book.

 

5.         Page 5, 9. Purchase andInstallation,- b. If there is system failure the mine will revert to manualtracking system that was previously used. 

 

 Petition for Civil Penalty at11-13.

 

            The citation wasterminated the following day, with the inspector noting: 

 

Through a visual observation aftertraveling the 2K MMU 009-0 #3 entry (return) (Alternate Escapeway) in itsentirety and having communication throughout and verifying through the trackingsoftware on the Mine's surface of this inspectors locations, this citation ishereby terminated. The system is working in the previously mentionedentry/area. Secondly, the Mine Operator is carrying a record/ledger (weeklyexam) to show the systems functioning properly.

 

*Id.* at 13.

 

Theissuing inspector, who diligently recorded the aspects of the Approved MineEmergency Response Plan provisions which were not complied with, listed the“Gravity” of the injury or illness as ‘Unlikely,’ but listed such injury orillness as “Fatal” if it were to occur. Marked as non-significant andsubstantial, nine miners would be affected. Given the multiple subjects ofnon-compliance, the inspector listed the negligence as “High.” *Id.*

 

 

**Analysisfor Citation No. 9205312******

 

The penalty, whichwas *regularly* assessed at $6,898.00, is now proposed to be settled at $1,393.00, representing **an 80% reduction**. Thisfigure is apparently derived by designating the negligence from ‘High’ to“Moderate.’ Motion at 3. The justification for this is short, the Motionrelating that the “Respondent has represented to the Secretary that it hadassigned miners to install the missing equipment that is the subject of thecitation, but that the work was not timely completed because of supply problems.”Undercutting this claim is that the inspector found *five*instances ofnon-compliance, yet all five violative conditions were somehow corrected thenext day, the supply problems apparently having vanished rapidly. This is thesole basis presented in the motion for listing the negligence as moderate. 

 

In support of the Secretary’s contention, the Solicitor’s attorneylooks to *Vindex Energy Corporation*, 34 FMSHRC 223, 224 (Jan. 2012) (ALJ)(“*Vindex*”), asserting that “[i]t is ‘appropriate to defer to thejudgment of the parties’ in arriving at a modified penalty based on the §100.3tables.” Motion at 3. The Solicitor’s attorney is apparently unaware that anadministrative law judge’s decision is not precedential. Commission ProceduralRule 69(d) provides that a Judge's decision does not constitute bindingprecedent. 29 C.F.R. § 2700.69(d). *Rain for Rent,*40 FMSHRC 976, 980(July 2018), *Tilden Mining,*36 FMSHRC 1965 (Aug. 2014). The Secretaryalso errs in asserting that there is an evidentiary dispute regarding theappropriate level of negligence but offers nothing to support the notion thatthe negligence should be deemed “Moderate,” other than the vague remark aboutthe short-lived claim of ‘supply problems.’ Merely asserting ‘supply problems’is apparently sufficient to carry the day. 

 

**CitationNo. 9204928**

 

Thissection 104(a) citation, invokes 30 C.F.R. § 75.1403, well known as the‘safeguard standard.’ It is also a statutory provision which requires that “[o]thersafeguards adequate, in the judgment of an authorized representative of theSecretary, to minimize hazards with respect to transportation of men andmaterials shall be provided.” 

 

Forthis now-admitted violation, on July 8, 2022 the inspector identified multipleviolations of the provision, noting that “[t]he 2K section (MMU 009-0) #2 entrytrack from 0xc - 9.5xc has failed to be properly maintained as identified bythe safeguards for the Bailey Mine in the aspect: **39 loose track bolts**,a **loose fish plate and a missing bolt**are allowed to exist on thistrack. Also, at the #8 crosscut **the rail is out of alignment** by 1/4 inchat the time of the exam. 

 

Petitionfor Civil Penalty at 15 (emphasis added).

 

            Thecitation noted that the safeguard standard had been cited **59 times in twoyears**at the mine. *Id.*

 

Thecitation was terminated four days later, on July 12, 2022, after the identifiedviolations were corrected with the inspector stating that the “operator wasable to tighten the loose bolts with approved means, and properly adjust therail at #8 crosscut, however will need to burn a hole in the rail to installthe missing bolt on the right side of the track at #8 crosscut. Because themine is currently operating on shutdown and minimal people are working,additional time is granted to get specialized manpower to this location to cutthe rail to install the bolt. *Id.* at 16.

 

**Analysisfor Citation No. 9204928**

** **

**TheSecretary’s attorney cites an administrative law judge decision as precedent,misconstrues the Commission’s decision in*****Mechanicsville Concrete, Inc*****., 18 FMSHRC 877, (June 1996), anddoes not provide ‘facts’ to support the requirements for settlement, per theCommission’s *AmCoal*decisions:****38 FMSHRC 1972, (Aug. 2016) (“*AmCoal I*”),*American Coal Co.*, 40 FMSHRC 983 (Aug. 2018) (“*AmCoal II*”)**

** **

****If the basis for the 80% penaltyreduction regarding the previously discussed Citation, No. 9205312, is arguablyjustified, the same cannot be said for Citation No. 9204928.****This is so becausethe offering by the Secretary does not even meet the Commission’s requirementsfor settlement motions. The justification, *in its entirety*, providesonly that:

[t]heSecretary has elected to withdraw the S&S designation for this violationand resolve it as “unlikely.” The proposed penalty reduction in this settlementis based on the point values in 30 C.F.R. §100.3 based on the Secretary’smodification to the citation. The Secretary’s use of the Part 100 regularassessment tables in settlement is a prima facie indication that the penaltyreduction is fair, reasonable, and adequate under the facts, and protects thepublic interest.

 

 Motion at3-4. 

 

TheSecretary’s attorney cites once again to the ALJ decision in *Vindex*,asserting that “[i]t is ‘appropriate to defer to the judgment of the parties’in arriving at a modified penalty based on the §100.3 tables.” *Id*. Theinapplicability of ALJ decisions as precedent has been discussed above.

 

            TheSecretary then adds that she “possesses unreviewable discretion to withdraw anS&S designation,” citing *MechanicsvilleConcrete, Inc*., 18 FMSHRC 877, 879 (June 1996) (“*Mechanicsville*”)(finding “no material difference between the Secretary’s discretion on the onehand to vacate a citation [pursuant to *RBK Construction, Inc*., 15 FMSHRC2099, 2101 (Oct. 1993)] and his discretion on the other hand not to issue acitation in the first instance or not to designate a citation as S&S.”[1]Motion at 4 (“*RBK*”).

 

            TheSecretary continues to inappropriately cite *Mechanicsville*as authority.This Court and other judges have noted that *Mechanicsville*does notsupport the Secretary’s claim that she possesses unreviewable discretion towithdraw an S&S designation. Yet, the Secretary continues to assertotherwise. It’s time to be clear about the Commission’s holding in *Mechanicsville.*

* *

            Atthe outset of its decision in *Mechanicsville*, the Commission veryplainly set forth the issue before it, stating that it “raises the issues of *whethera judge on his own initiative* can designate a violation of a mandatorysafety standard to be significant and substantial.”**18 FMSHRC 877. TheCommission’s answer to the issue was equally plain, stating that it “agree[d]with the Secretary that the judge erred in determining *on his own initiative*that the violation was S&S.” *Id.*at 879 (emphasis added). Thus, thedecision was expressly limited to the Commission’s holding *that the judgeerred* “*by adding a new finding and conclusion*, i.e., that theviolation posed a hazard to employees that was reasonably likely to result in areasonably serious injury and was therefore S&S.” *Id.*at 880(emphasis added)*.* The Commission’s decision added nothing more to thatholding. 

 

Thatthe Commission’s decision in *Mechanicsville*did not go beyond the verywords it employed in that decision was made additionally clear in *SpartanMining*, 30 FMSHRC 699 (August 2008). There, Spartan tried to expand *Mechanicsville* butthe Commission would have nothing of it, informing that it “*reject[ed]* Spartan’scontention that the judge was bound by the Secretary’s assessment of the degreeof negligence of “moderate” contained in the citation. ... Spartan unpersuasivelyrelies on *Mechanicsville Concrete, Inc*., 18 FMSHRC 877, 879-80 (June1996) (finding that judge may not designate a violation as S&S on his owninitiative), to assert that the judge’s alteration of the citation wasimpermissible. *However, Mechanicsville is distinguishable because modifyinga negligence determination, as the judge did here, is authorized by the MineAct, whereas inserting an S&S designation is not.*” *Spartan* at*22 (emphasis added).

 

            Accordingly,there is *no* basis for the Secretary’s habitual citation to *Mechanicsville***as authority for theclaim that she possesses unreviewable discretion to *withdraw* an S&Sdesignation. It is one thing for the Secretary *to argue*that theCommission’s holding in *Mechanicsville*should be *expanded* beyondthat holding, but to assert that the decision affords the Secretary withunreviewable discretion to withdraw such a finding is beyond the pale. Here,the Secretary does not present its contention as an argument. Instead, theSecretary’s attorney presents his position as the state of the law. It is not. 

 

            Attorneyshave an obligation not to misstate case law. *Teamsters Local No. 579 v. B& M Transit, Inc.,* 882 F.2d 274, 280 (7th Cir.1989). Rule 11 of the Federal Rules ofCivil Procedure requires attorneys to inquire about the ... law before filingpleadings. ... an attorney who submits a pleading must certify that: ‘to the bestof the [attorney's] knowledge, information, and belief formed after reasonableinquiry [the pleading] is ... warranted by existing law or a good faith argumentfor the extension, modification, or reversal of existing law.” *Dzwonkoski,*2008WL 2163916 (May 16, 2008) (S.D. Ala. 2008) citing*Howard v. Liberty MemorialHosp*., 752 F.Supp. 1074, 1080 (S.D.Ga.1990).

 

            Therefore,unless and until the Commission revises its holding in *Mechanicsville*, the Secretary, both her attorneysand her non-attorney representatives, (Conference and litigationrepresentative, “CLRs,”) should cease invoking that decision for propositionsnot supported by it. 

 

** **

**REVISITINGPRESENT COMMISSION LAW FOR SETTLEMENT MOTIONS AS APPLIED TO THIS MATTER.**

** **

            Fundamentally,the Secretary’s Motion in this matter does not meet the Commission’s test forsettlement approvals, as set forth in *American Coal Co.*, 38FMSHRC 1972, (Aug. 2016) (“*AmCoal I*”), and *American Coal Co.*, 40FMSHRC 983 (Aug. 2018) (“*AmCoal II*”)

** **

****Once past the obvious preliminaries– that a motion for settlement must state the penalty amount originallyproposed by the Secretary and the new amount the parties have agreed to pay, theCommission’s decision in *AmCoal II* sets forth the present requirements deemedsufficient for its judges in carrying out their “front line oversight of thesettlement process” in order “to fulfill their duty of determining if asettlement of a penalty is fair, reasonable, appropriate under the facts, andprotects the public interest.” *Id.* at 985, 987. 

 

            TheCommission repeatedly spoke of the need for ‘factual support’ for penaltyreduction. *Id*. at 989, 990. Though the Commission advised that such‘facts’ “are not limited to facts related to the section 110(i) penaltycriteria or to the alleged violations,” the Commission still required thatfacts be presented. *Id.*at 986. Accordingly, it has “required parties *tosubmit facts* supporting a penalty amount agreed to in settlement.” *Id.*at987. It noted, “[i]n particular, Commission Procedural Rule 31 requires that a motionto approve penalty settlement must include for each violation “the penaltyproposed by the Secretary, the amount of the penalty agreed to in settlement, *andfacts* in support of the penalty agreed to by the parties.” *Id.*

 

            TheCommission rejected the need for a respondent to present *legitimate*questionsof fact which can only be resolved through the hearing process and alsorejected that there is a need to show any *legitimate* factualdisagreement. *Id*. at 991. As such, the Commission stated that “[f]actsalleged in a proposed settlement need not demonstrate a ‘legitimate’disagreement that can only be resolved by a hearing. The Commission’sProcedural Rules and standing precedent do not contain such a requirement.Rather, the Commission has recognized that parties may submit facts thatreflect a mutual position that the parties have agreed is acceptable to them inlieu of the hearing process.” *Id.*

 

            Despitethe above, the Commission’s *AmCoal II* decision still requires thesubmission of ‘facts.’ Such facts must be “mutually acceptable facts thatdemonstrate the proposed penalty reduction is fair, reasonable, appropriateunder the facts, and protects the public interest.” *Id.* at 991. Here, nofacts have been presented. 

 

Itis not an exaggeration to describe the basis for the Secretary’s justificationas essentially ‘*because we can*.’ Though set forth above, it is worth repeatingwhat the Secretary presented here, to wit: 

 

[t]he Secretary has elected towithdraw the S&S designation for this violation and resolve it as“unlikely.” The proposed penalty reduction in this settlement is based on thepoint values in 30 C.F.R. §100.3 based on the Secretary’s modification to thecitation. The Secretary’s use of the Part 100 regular assessment tables insettlement is a prima facie indication that the penalty reduction is fair,reasonable, and adequate under the facts, and protects the public interest.

 

Motion at3-4. 

 

            Noneof this amounts to mutually acceptable facts that demonstrate the proposedpenalty reduction is fair, reasonable, *appropriate under the facts*, andprotects the public interest.

 

 

 

**CitationNo. 9205356**

 

Thiscitation also invokes 30 C.F.R. § 75.1403. Issued on July 20, 2022, theinspector’s Condition or Practice section of the citation states: 

 

The Mine Operator failed tomaintain an unobstructed travelway of at least 24 inches in width on walk sideof the 11-L Conveyor Belt between the outby end of the storage unit andthebottom step of the 6 south Mains Left Track overcast stairs for a distance of30 feet in length. Old pieces of conveyor belt were humped up in the air, therewere 2 small rolls of conveyor belt, splicing nail buckets, splices, a conveyorbelt cutter and splicing template filling most of the required walkway in thecited area. The walkways in this area was wet, muddy and very slippery withouthaving to traverse this extraneous materials. The Operator immediately startedto clear the extraneous materials after the issuance of this citation. **Standard75.1403 was cited 61 times** in two years at mine 3607230 (60 to theoperator, 1 to a contractor).

 

Petitionfor Civil Penalty at 18 (emphasis added).

 

Thecitation was terminated on July 21, 2022, with the inspectors remarking that“[a]ll of the extraneous materials have been cleaned out of the citedtravelway/walkway. There is now at least 24 inches of clear, unobstructedtravelway, therefore this citation is terminated. *Id.* at 19.

 

**Analysisfor Citation No. 9205356**

** **

****As the Secretary’s attorney seeksthe same modifications to this citation as he did for Citation No. 9204928 andoffers the same justification, the Court’s previous analysis applies.

 

**Summary:**

 

            Asdiscussed above, the Secretary has cited to inapplicable precedent, by relyingupon an administrative law judge decision, inappropriately cited to *Mechanicsville Concrete, Inc*., 18 FMSHRC 877, (June 1996), fora proposition that case does not support, and failed to meet the Commission’sstandards for an acceptable motion to approve settlement, per its decisions in *AmCoal I* and *AmCoal II*. 

 

            Thatsaid, because the Commission has, to the best of this Court’s understanding, a100% approval rate for settlement motions, it has decided to approve thesettlement in this instance because the Commission examines all settlementdeterminations made by its judges, and has the authority, per 29 C.F.R.§2700.71, to review a judge’s decision on its own motion.[2]

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. As noted, under those decisions, reasonable inquiry by the Courtis not permitted. 

 

Accordingly,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. CitationNo. 9205312 is modified to moderate negligence, Citation No. 9204928 ismodified to unlikely and non-S&S, Citation No. 9205356 is modified tounlikely and non-S&S.

 

Itis ORDERED that the Respondent pay the agreed-upon civil penalty of $1,897.00within 30 days of this order.[3]Upon receipt of payment, this case is DISMISSED.

 

 

 

 

/s/William B. Moran

                                                                                    WilliamB. Moran

                                                                                    AdministrativeLaw Judge

 

 

Distribution:

 

AttorneyKyle D. Stelmack, U.S. Department of Labor,Office of the Regional Solicitor

1835 Market Street, Mailstop SOL/22, Philadelphia, PA 19104

Stelmack.kyle.d@dol.gov

 

Craig S. Aaron, CONSOL Energy, Inc., 275 Technology Drive,Suite 101

Canonsburg, PA 15317 craigaaron@consolenergy.com

----

[1]*RBK*holdsonly that the Secretary has the authority to *vacate* the citations. 15 FMSHRC at 2101 

[2]29 C.F.R. § 2700.71,titled, “Review by the Commission on its own motion,” provides “[a]t any timewithin 30 days after the issuance of a Judge's decision, the Commission may, bythe affirmative vote of at least two of the Commissioners present and voting,direct the case for review on its own motion. Review shall be directed onlyupon the ground that the decision may be contrary to law or Commission policyor that a novel question of policy has been presented. The Commission shallstate in such direction for review the specific issue of law, Commissionpolicy, or novel question of policy to be reviewed. Review shall be limited tothe issues specified in such direction for review.

 

[3]Penalties may bepaid electronically at Pay.Gov, a service of the U.S. Department of theTreasury, at https://www.pay.gov/public/form/start/67564508. Alternatively,send payment (check or money order) to: U.S. Department of Treasury, MineSafety and Health Administration, P.O. Box 790390, St. Louis, MO 63179-0390. 

Itis vital to include Docket and A.C. Numbers when remitting payments.