**FEDERAL MINE SAFETY AND HEALTHREVIEW COMMISSION**

OFFICE OFADMINISTRATIVE LAW JUDGES

721 19th ST.SUITE 443

DENVER, CO 80202-2500

TELEPHONE:303-844-5266 / FAX: 303-844-5268

 

August 12, 2020

 
| SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH       

 ADMINISTRATION (MSHA),

             Petitioner,

 

             v.

 

PEABODY MIDWEST MINING, LLC,

              Respondent.                                              |   |   | CIVIL PENALTY PROCEEDING

 

Docket No. LAKE 2017-0450

A.C. No. 12-02295-447106

 

 

 

 

Mine: Francisco Underground  Pit |
|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|----------------------------------------------------------------------------------------------------------------------------------------------------------|

** **

**DECISION ONREMAND**

 

Before:              Judge Simonton 

 

            This case is before me upon remand from theCommission. *Peabody Midwest Mining, LLC*,**42 FMSHRC___, slip. op.at 11 (June 2, 2020). It involves a petition for assessment of a civil penaltyfiled by the Secretary of Labor through the Mine Safety and HealthAdministration (“MSHA”) against Peabody Midwest Mining, LLC (”Peabody” or“Respondent”), pursuant to section 104(d)(1) of the Federal Mine Safety andHealth Act of 1977 (“Mine Act”), 30 U.S.C. § 814(d)(1). 

 

**                                                                              I.         ****HISTORY OF THE CASE**

** **

On July 17, 2017, MSHA issuedCitation No. 9105403 to Peabody for a violation of section 316(b) of the MineImprovement and New Emergency Response Act of 2006 (“MINER Act”), which requiresevery underground coal mine to develop a written plan to provide for theevacuation of all individuals in an emergency and provide for the maintenanceof miners trapped underground where evacuation is not possible. 30 U.S.C. § 876(b).Peabody’s Emergency Response Plan (“ERP”) requires two properly positionedrefuge chambers, sufficient to shelter all the miners present in the event ofan emergency, even during a shift change when two teams of 15 miners would bepresent. Ex. S–3. It states that refuge chambers “will not be placed in thedirect line of sight of the working face.” However, at the time of inspection,one refuge chamber was in the travelway in the direct line of sight of theworking face and in violation of the ERP. Ex. R–A; Tr. 27–29. The inspectordesignated the citation significant and substantial (“S&S”), reasonablylikely to be fatal, and the result of Peabody’s high negligence andunwarrantable failure to comply with the Mine Act. Ex. S–1. The Secretaryproposed a civil penalty of $44,546.00.

 

Peabody contested the S&S,negligence, unwarrantable failure designation, and the penalty. Respondent’sPost-Hearing Brief at 10. A violation is S&S “if based upon the particularfacts surrounding the violation there exists a reasonable likelihood that the hazardcontributed to will result in an injury or illness of a reasonably seriousnature.” *Cement Division, National Gypsum Co.,* 3 FMSHRC 822, 825 (Apr.1981). I determined that the violation was S&S because the Secretary provedthe four elements of the *Mathies*test: (1) the underlying violation of amandatory safety standard; (2) a discrete safety hazard—that is, a measure ofdanger to safety—contributed to by the violation; (3) a reasonable likelihoodthat the hazard contributed to will result in an injury; and (4) a reasonablelikelihood that the injury in question will be of a reasonably serious nature. *MathiesCoal Co.*, 6 FMSHRC 1, 3–4 (Jan. 1984). In analyzing the second criterion, Iacknowledged the Commission’s recognition in past cases that “emergency standardsare different from other mine safety standards because they are intended toapply meaningfully only when an emergency actually occurs.” *IGC Illinois,LLC*, 38 FMSHRC 2473, 2476 (Oct. 2016) *citing**Cumberland CoalRes., LP*, 33 FMSHRC 2357, 2367 (Oct. 2011), *aff’d* 717 F.3d 1020(D.C. Cir. 2013). Because Commission precedent directs judges to *assume*theexistence of a contemplated emergency when defining the hazard contributed to bya violation, *see, e.g., ICG Illinois, LLC*, 38 FMSHRC at 2476, I assumed anemergency in which evacuation was impossible and the refuge chamber wasnecessary. 

 

Testimony at the hearingestablished that the ERP prohibits positioning the refuge chamber in the directline of sight of the working face because an explosion traveling out could damageor destroy the chamber. Tr. 29–30, 84–85. In presuming the occurrence of a fireor ignition significant enough to prevent miners from evacuating, I found thatall four elements of the *Mathies*test were satisfied and thus theviolation was S&S. I affirmed the citation as written and assessed apenalty of $50,000.00. 40 FMSHRC 861 (June 2018) (ALJ).  

 

Following the issuance of my June28, 2018 decision after hearing, Peabody appealed the decision to theCommission. It did not contest the fact of violation or the unwarrantablefailure designation, but challenged the citation’s Significant and Substantial(“S&S”) designation. Upon review, the Commission reversed the S&Sdesignation. 42 FMSHRC___, slip op. at 10–11. In doing so, it reviewed S&Sprecedent and restated the proper test for an S&S violation: 

 

In order to establish that a violationof a mandatory safety standard is significant and substantial, the Secretary ofLabor under *National Gypsum* must prove: (1) the underlying violation ofa mandatory safety standard; (2) the violation was reasonably likely to causethe occurrence of the discrete safety hazard against which the standard isdirected; (3) the occurrence of that hazard would be reasonably likely to causean injury; and (4) there would be a reasonable likelihood that the injury inquestion would be of a reasonably serious nature.

** **

*Id*.**at 5. Because more than 15 miners wereonly present during shift changes when no mining activities were occurring, theCommission determined that the one properly-placed refuge chamber wassufficient for the contemplated emergency because an explosion was only everlikely during mining activities. *Id*. at 8–10. The Commission remandedthe case for reassessment of the civil penalty in accordance with its decision.

 

 

 

**                                                                                                 II.         ****PENALTY**

** **

            It iswell established that Commission administrative law judges have the authorityto assess civil penalties de novo for violations of the Mine Act. *SellersburgStone Company*, 5 FMSHRC 287, 291 (Mar. 1983). Commission Judges are notbound by the Secretary’s penalty regulations. *Am. Coal Co.*, 38 FMSHRC1987, 1990 (Aug. 2016).  Rather, the Act requires that in assessing civilmonetary penalties, the Commission ALJ shall consider the six statutory penaltycriteria:

 

(1) the operator’shistory of previous violations, (2) the appropriateness of such penalty to thesize of the business of the operator charged, (3) whether the operator wasnegligent, (4) the effect on the operator’s ability to continue in business, (5)the gravity of the violation, and (6) the demonstrated good faith of the personcharged in attempting to achieve rapid compliance after notification of aviolation.

 

30 U.S.C. § 820(i).

 

            I haveconsidered and applied the six penalty criteria. In the fifteen monthspreceding the issuance of this citation, Peabody averaged 0.59 violations perinspection day and had only one previous violation of section 316(b). The mineis a large operator and the parties stipulated that the Secretary’s proposed penaltyof $44,546.00 would not affect Peabody’s ability to remain in business. Thehigh negligence designation was not challenged on appeal and remains unaffectedby the Commission’s decision. The Commission has determined that this violationis not S&S, so the gravity involved is less severe than originally designatedin the citation and affirmed in my initial decision. Relatedly, as a result ofthe S&S designation being vacated, the violation must be reclassified as asection 104(a) citation, which effectively removes the unwarrantable failure determination.Peabody immediately worked to abate the condition following the issuance of thecitation. Tr. 62-63, 150, 172. However, it also admitted that the refugechamber would have remained in the direct line of sight of the working face fora couple of days if not for the citation. Tr. 150. 

 

I remain convinced that Peabody’sfailure to follow its own ERP by placing a refuge chamber in direct line ofsight of the working face constitutes an extremely serious violation. Afterconsidering the penalty criteria in light of the Commission’s decision, I findthat a penalty of $35,000 is appropriate. 

 

 

** **

**                                                                                                  III.         ****ORDER**

 

            Because the citation’s S&S designation hasbeen eliminated,****it is hereby **ORDERED** that Citation No. 9105403be changed from a section 104(d)(1) citation to a section 104(a) citation. PeabodyMidwest Mining, LLC is **ORDERED**to pay the Secretary of Labor the sum of **$35,000**within 30 days of this decision.[1]

 

 

 

 

/s/David P. Simonton

David P. Simonton

Administrative Law Judge

 

 

 

Distribution: (Email[2]) 

 

R. Henry Moore, Fisher & Phillips, LLP,hmoore@fisherphillips.com

 

Arthur M. Wolfson, Fisher & Phillips, LLP, awolfson@fisherphillips.com

 

Andrew R. Tardiff, Office of the Solicitor, U.S. Departmentof Labor, tardiff.andrew.r@dol.gov

----

[1]Please pay penalties 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. Please include Docket and A.C. Numbers. 

[2]For theforeseeable future, Federal Mine Safety and Health Review Commission (FMSHRC)notices, decisions, and orders will be sent only through electronic mail.Because FMSHRC will not be monitoring incoming physical mail or faxes, partiesare encouraged to submit all filings through the agency’s electronic filingsystem. If you are not able to file through our electronic filing system,please send an email copy and we will file it for you.