**FEDERAL MINE SAFETY AND HEALTH REVIEWCOMMISSION**

OFFICE OF ADMINISTRATIVELAW JUDGES

1331 PENNSYLVANIAAVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9950/ Fax 202-434-9954

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SECRETARY OF LABOR

  MINE SAFETY AND HEALTH     

  ADMINISTRATION (MSHA),

   Petitioner,

 

v.

 
APPALACHIAN  RESOURCE WV LLC,            
                           Respondent.                                               |  

 

 

  |  

  |  

CIVIL PENALTY PROCEEDING

 

Docket No. WEVA 2022-0555

A.C. No. 46-08930-560351

 

 

 

Mine: Grapevine South Mine

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**DECISIONDENYING SECRETARY’S MOTION FOR APPROVAL OF SETTLEMENT**

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Before: Judge William Moran

 

This matter 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 non-attorney conference and litigation representative (“CLR”) filed aMotion to Approve Settlement. Upon reviewing the motion, on January 24, 2023,the Court noted that two section 104(b) orders were missing from the record. CitingExhibit A, from the petition for assessment of a civil penalty, the Court notedthat the missing orders were part of the paper issued in connection withCitation Nos. 9567103, and 9567108 for this docket.The Court also noted that for Citation No. 9567108, the motion included areduction in the regularly assessed penalty.  Accordingly, the Court requestedthat these documents be provided promptly to it. 

 

Subsequently, an attorney for the Secretary filed a notice ofappearance and, in a motion filed at that time, in sum and substance, deniedthe Court’s request for submittal of the orders.[1]Secretary’s Response to the Court’s Request for Documents. January 30, 2023. 

It is noted that in prior litigation before this Court for which theSecretary refused to supply associated (b) orders, one of the asserted groundswas that as the matter was settled for the full amount assessed, that precludedthe Commission from viewing such orders. The Court rejected that claimed basisfor non-disclosure. Here, the Secretary takes it a step further, effectivelyclaiming that even when a proposed penalty is reduced the Commission still hasno business in viewing the entire record associated with violations.

Examining the two citations for which (b) orders were issued inconnection with them, both are humdingers. Citation No. 9567103 cites anow-admitted violation of 30 C.F.R. §77.1606(c). That standard, titled “Loadingand haulage equipment; inspection and maintenance,” provides in subsection (c)that “Equipment defects affecting safety shall be corrected before theequipment is used.” Involving a CAT loader, the issuing inspector cited nine(9) independent bases in support of the citation. Any one of the defects wouldsupport the violation of the standard cited. First issued on June 13, 2022, thecitation informs that the loader was then removed from service. Regularlyassessed at $626.00, effectively $69.56 per defect, the motion informs that thepenalty remained as assessed. 

 

It is fair to state that compliance with the cited standard, 30 C.F.R.§77.1606(c), at this mine has been poor, with some 68 (sixty-eight) citationsbeing issued for such failures in the past two years. By June 21st,the conditions cited not yet corrected, the inspector allowed additional timeto make the repairs – extending the time for abatement to June 24th.On June 27th, the repairs still not completed, the inspectorextended the date for abatement a second time, to July 4, 2022. At that pointthe record goes dark, other than Exhibit A reflecting that a (b) order wasissued. It is that order that the Secretary seeks to shield from the eyes ofthe Commission, miners and the public. 

 

The other citation, No. 9567108, cites the same standard as beingviolated – 30 C.F.R. §77.1606(c). This one, issued two days after the loadercitation just described, involved a CAT truck. Eclipsing the number of defectsidentified for the loader, by a factor of more than two, the inspectoridentified 19 (nineteen) independent defects on the truck. Though the issuinginspector informed that the truck is used on steep grades, elevated roadways,in congested areas and at times near foot traffic, neither those conditions northe number of defects impeded the Secretary from dropping the penalty by 54%(fifty-four percent). 

 

Offering that the Respondent would argue that there were no operationalissues with  the steering or brakes and contending that the tire was a 58-plytire with only 2 plies damaged, the Secretary stuck by guns but only in termsof the inspector’s evaluation. Monetarily, and inherently in conflict withbeing unwilling to change any part of the inspector’s evaluation,  theSecretary nonetheless dropped the penalty by more than half. That the 19defects did not present operational issues is dubious. Those undisputed defectsseriously belie that claim. 

 

When first issued, on June 15, 2022, by June 21st thedefects were still not abated, but the inspector then extended the time tocorrect the problems to June 24, 2022. On June 30th, the defectsstill were not corrected, and the inspector then extended the time for abatementyet again, this time to July 7, 2022.  After that, as with the citationdescribed above, the record goes dark except for the notation in Exhibit A thata (b) order was issued. 

 

As the Court has explained in other matters assigned to it for which104(b) orders were missing from the record, once a matter is before theCommission, as is the case for this docket, perforce the matter is before theCommission, not simply those aspects that the Secretary wishes to disclose.

 

The Secretary of Labor’s role in mine safety and health matters is toprotect the safety and health of our Nation’s miners. Full stop. What purposethe Secretary serves by secreting the full enforcement record is a mystery. TheCourt cannot discern any benefit to the affected miners, nor to the public atlarge, nor to the Commission in fulfilling its statutory role under section110(k) of the Mine Act. Acting this way, in the Court’s opinion, is not a goodlook for the Secretary.

 

Accordingly, the motion and the request that it be approved is DENIED. Asthe issue in this matter is presently before the Commission, the Court willawait that determination before acting further.  

 

 

 

 

 

/s/ William B. Moran

                                                                                  WilliamB. Moran

                                                                                  AdministrativeLaw Judge

 

 

 

Distribution:

 

Emily TolerScott, Esq.

Counsel forAppellate Litigation 

U.S.Department of Labor 

Office ofthe Solicitor 

Division ofMine Safety & Health 

201 12thStreet South, Suite 401 

Arlington,VA 22202 

scott.emily.t@dol.gov

 

K. Brad Oakley, Esq.

Jackson Kelly PLLC

100 W. Main Street, Suite 700

Lexington, KY 40507

kboakley@jacksonkelly.com

 

David C. Trent, Conference & Litigation Representative

U.S. Department of Labor, MSHA 

4499 Appalachian Highway

Pineville, WV 24874 

trent.david@dol.gov

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[1]This decisiondenying the Secretary’s motion for approval of settlement addresses only theSecretary’s refusal to provide the full record with respect to the twocitations for which (b) orders were issued. Three other citations involvereductions in the regularly assessed penalties while simultaneously standing bythe issuing inspector’s evaluation. Analysis of those modifications is deferreduntil the (b) orders absences are resolved.