**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 7, 2020

 
| SECRETARY  OF LABOR

  MINE  SAFETY AND HEALTH      

  ADMINISTRATION  (MSHA),

                            Petitioner

 

                        v.

 

KENAMERICAN  RESOURCES, INC.,

                            Respondent                                                                                   |   |   | CIVIL  PENALTY PROCEEDING

 

Docket  No. KENT 2013-0211

A.C.  No. 15-17741-305075

 

 

 

Mine:  Paradise #9 |
|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|------------------------------------------------------------------------------------------------------------------------------------------|

 

**DECISION ONREMAND**

 

Before:  Judge Miller

 

This case is before me upon petitionfor assessment of a civil penalty filed by the Secretary of Labor pursuant toSection 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §815(d) (“the Act”). This case was remanded by the Commission to determine anappropriate civil penalty for Citation No. 8502992, issued pursuant to Section103(a), with a total proposed penalty of $18,742.00. 

 

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

 

This case was originally assigned toAdministrative Law Judge L. Zane Gill. On July 24, 2015, KenAmerican Resources(“KenAmerican”) filed a motion for summary judgment, alleging that theSecretary’s claims were unsubstantiated and that there was no violation of section103(a) of the Mine Act. That section of the act, states in pertinent part that“no advance notice of an inspection shall be provided to any person,” 30 U.S.C.§ 813. KenAmerican’s motion was granted and the citation was vacated. *Sec’y of Labor v. KenAmerican Resources, Inc.,*37FMSHRC 1809 (Aug. 2015) (ALJ).  On August 25, 2016, following a petition for discretionaryreview, the Commission found that the summary decision was improper andreversed and remanded the case with instructions to hold a hearing. *Sec’y of Labor v. KenAmerican Resources, Inc.,*38FMSRC 1943 (Aug. 2016). After an evidentiary hearing of the case, Judge Gillissued a decision on December 14, 2018, finding that the Secretary failed toestablish a violation. *Sec’y of Labor v.KenAmerican Resources, Inc.,*40 FMSHRC 1544 (Dec. 2018) (ALJ). 

 

Following Judge Gill’s decision, theCommission granted the Secretary a second petition for discretionary review. Afterbriefing and argument, the Commission determined that a violation had occurredas set forth in the citation issued by the Secretary and determined that thecase should be remanded for the assessment of a penalty consistent with section110(i) of the Act. 30 U.S.C. § 821(i). TheCommission decision constitutes the law of the case. *See Pepper*

*v. United States*, 131 S. Ct.1229, 1250 (2011). Following the unexpected passingof Judge Gill on June 23, 2020, this case was reassigned to determinethe appropriate penalty.  For the reasons set forth below, I assess the penaltyin the amount proposed by the Secretary. 

 

**II.   ****ISSUE ON REMAND**

 

OnApril 20, 2012, MSHA Inspector Doyle Sparks and six other inspectors traveledto KenAmerican’s Paradise #9 mine to conduct an investigation in response to acomplaint of an alleged hazardous condition. Before the inspectors traveledinto the mine to begin their investigation, MSHA inspectors instructed theminers on the surface not to warn underground personnel that MSHA inspectorswere present. While inspector Sparks monitored the mine’s communication system,he heard an exchange between two miners that appeared to be providing advancenotice to the miners underground. Sparks overheard a call from the #4 unit in whicha miner asked the dispatcher if there was “company outside,” to which thedispatcher responded, “yeah, I think there is.” Tr. 23-24, 163-164. Sparksasked the underground miner to identify himself, but received no response. Onceunderground, Sparks made a second attempt to identify the miner, but againreceived no response. The Commission found that Holz, the dispatcher, agreedthat a miner asked him if “company” was outside and that he understood theunidentified miner’s question to be an inquiry into the presence of MSHAinspectors. “Therefore, he knew the question presented a request for advancenotice.” *Sec’y of Labor v. KenAmerican Resources, Inc.,*42FMSHRC 1, slip op. at 2, No. KENT 2013-0211 (Jan. 16, 2020). 

 

Sparksissued Citation No. 8502992 to Respondent pursuant to Section 103(a) of theMine Act alleging that mine personnel provided advance notice to undergroundminers that MSHA inspectors were on site during a hazard complaint inspection. Tr.10.Section 103(a) of the Mine Act authorizes the mine inspectors to conductinspections and investigations of coal and other mines. This section alsorequires that “In carrying out the requirements of this subsection, no advancenotice of an inspection shall be provided to any person....”  Similarly, a personwho provides advance notice of an inspection may face the possibility of acriminal prosecution. 30 U.S.C 820(3). The citation, after amendment, wasissued as a significant and substantial violation and the result of highnegligence. The Commission upheld the citation as issued and remanded the case solelyfor the assessment of civil penalty. The penalty assessment is based upon theCommission’s decision on remand and the record in its entirety, including thehearing transcript and the briefs filed by the parties in the case. 

** **

**III. ****PENALTY**

 

The principles governing the authority of CommissionAdministrative Law Judges to assess civil penalties de novo for violations ofthe Mine Act are well established. Section 110(i) of the Mine Act delegates tothe Commission and its judges “authority to assess all civil penalties providedin [the] Act.” 30 U.S.C. § 820(i). 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 judge must consider six statutory penalty criteria: theoperator’s history of violations, its size, whether the operator was negligent,the effect on the operator’s ability to continue in business, the gravity ofthe violation, and whether the violation was abated in good faith. 30 U.S.C. §820(i). 

The Secretary hasproposed a penalty of $18,742.00 for the violation. I have considered andapplied the six penalty criteria found in Section 110(i) of the Act. I havereviewed the history of this operator and taken note of the fact that two minesuperintendents and a foreman were previously convicted of the crime ofproviding advance notice at this mine.[1]I have also considered that this is a large-sized operator, and that theparties have stipulated to the ability to pay. No issue was raised by eitherparty about a lack of good faith abatement. 

The violation was assessedas significant and substantial and was the result of high negligence. The Commissionmade no change to these findings in its decision and I accept the findings indetermining a penalty. The violation was significant and substantial, given theimportance placed on the notice requirement in the Act and that providingnotice could result in a criminal prosecution. In addition, giving advancenotice allows a mine operator the opportunity to alter violative conditions priorto the arrival of an MSHA inspector and allows the continuation of operations underviolative conditions after an inspector departs. Therefore,the gravity of the violation is serious, and the penalty is intended to reflectthat it is serious.

The Commission hasrecognized that “[e]ach mandatory standard ... carries with it an accompanyingduty of care to avoid violations of the standard, and an operator’s failure tomeet the appropriate duty can lead to a finding of negligence if a violation ofthe standard occurs.” *A.H. Smith Stone Co.*, 5 FMSHRC 13, 15 (Jan. 1983).In determining whether an operator met its duty of care, the judge mustconsider “what actions would have been taken under the same circumstances by areasonably prudent person familiar with the mining industry, the relevantfacts, and the protective purpose of the regulation.” *Newtown*, 38 FMSHRCat 2047; *Brody Mining, LLC*, 37 FMSHRC 1687, 1702 (Aug. 2015); *U.S.Steel Corp.*, 6 FMSHRC 1908, 1910 (Aug. 1984). While the Secretary’s Part100 regulations evaluate negligence based on the presence of mitigatingfactors, Commission judges are not limited to that analysis. *Brody*,**37FMSHRC at 1702-03. Rather, Commission judges consider “the totality of thecircumstances holistically” and may find high negligence in spite of mitigatingcircumstances. *Id.* at 1702. The Commission has recognized that “thegravamen of high negligence is that it ‘suggests an aggravated lack of carethat is more than ordinary negligence.’” *Id.* at 1703 (quoting *TopperCoal Co.*, 20 FMSHRC 344, 350 (Apr. 1998)). 

In reviewing the recordas a whole and the Commission decision, I find that the designation of highnegligence is well supported. The record clearly indicates that an affirmativeresponse was provided to a request for advance notice from an underground miner,even after the inspectors warned the miners at the surface not to engage inthat conduct.  Management’s failure to instruct or ensure that no advancenotice was given prior to inspections constitutes more than ordinarynegligence. *See Ky. Fuel Corp.*, 40 FMSHRC 28 (Feb.2018) (in which the Commission approved a judge’s decision that similarly concludedthat high negligence was appropriate due largely to an operator’s failure toprovide adequate training and materials to prevent a violation). A finding ofhigh negligence is further supported by the circumstances surrounding theviolation, in particular the unidentified miner’s refusal to identify himselfon the phone or in person when Sparks arrived underground and Holz’s admissionthat he knew he was prohibited from providing advance notice of MSHA’s presenceto underground miners. 

**IV. ****ORDER**

Ihave reviewed the record in its entirety and find that the Secretary’s proposedpenalty is appropriate in this case. Accordingly, Respondent is hereby **ORDERED**to pay the Secretary of Labor the sum of $18,742.00 within 30 days of the dateof this decision.

 

 

 

 

/s/Margaret A. Miller

                                                                                    MargaretA. Miller

AdministrativeLaw Judge

 

 

 

Distribution:(Electronic Mail with Appeal cover sheet)

 

EmilyToler Scott, Ali A. Beydoun, April Nelson, U.S. Department of Labor, Office ofthe Solicitor, 201 12th Street South, Suite 401, Arlington, VA 22202-5450

Scott.emily.t@dol.gov,beydoun.ali@dol.gov, nelson.april@dol.gov

 

MelanieGarris, U.S. Department of Labor, MSHA, Office of Civil Penalty Compliance, 20112th Street South, Suite 401, Arlington, VA 22202-5450, garris.melanie@dol.gov

 

JasonHardin, Artmeis Vamianakis, Fabian VanCott, 215 South State Street, Suite 1200,

SaltLake City, UT 84111-2323, jhardin@fabianlaw.com, avamianakis@fabianlaw.com

 

----

[1]*See KenAmericanResources*,slip op. at 5 (Jan. 16, 2020)(noting that “two mine superintendents and aforeman working at the Paradise No. 9 mine were previously convicted of the crimeof providing advance notice.” (citing *United States v. Gibson,*409 F.3d325, 333 (6th Cir. 2005)).