**FEDERAL MINE SAFETY AND HEALTH REVIEWCOMMISSION**

OFFICEOF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIAAVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9933/ Fax 202-434-9949

 

 

|  

SECRETARY OF LABOR

  MINE SAFETY AND HEALTH     

  ADMINISTRATION (MSHA),

   Petitioner

 

v.

 
APPALACHIAN  RESOURCE WEST VIRGINIA, LLC,
                           Respondent                                    |  

 

 

  |  

  |  

CIVIL PENALTY PROCEEDING

 

Docket No. WEVA 2022-0428[1]

AC No. 46-08930-551112

 

 

 

Mine: Grapevine  South Surface Mine

 

 

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** **

**DECISIONAPPROVING SETTLEMENT**[2]****

** **

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 for the citations and order involvedin this matter.[3]Theparties move to modify the citations and order, as stated below. The penaltywould be reduced accordingly, from the original assessed amount of**$28,246.00**to**$20,070.00.**

** **

All citationswere regularly assessed. Citation Nos. 9563155, 9563156, 9563158, 9563159,9563160, 9563161, 9563171, 9563172, 9563173, 9563174, 9563175, 9563176,9563183, 9563188, and 9563189 were issued as 104(a) citations, with a 10%penalty reduction for good faith. The one exception to the good faithreductions was Section 104(a) Citation No. 9563157, which was issued on January18, 2022. Thirteen (13) days later, the cited conditions not having beencorrected, the inspector issued a 104(b) order. The proposed penalty for thatcitation was issued without the 10% penalty reduction for “good faith”abatement efforts. 
| **Citation**                                                 | **MSHA’s**

**Proposed Penalty**   | **Settlement**

**Amount** | **Other modifications to citation/order**                                                                                                                                                                                    |
|--------------------------------------------------------------|------------------------------------|----------------------------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| **9563155**                                                  | $407.00                            | $407.00                    | Violation of  30 C.F.R. § 77.205(a), safe means of access not provided and maintained  on 993K Caterpillar Front-End Loader Co. No. L465. 

Sustained as  Issued- No penalty reduction                               |
| **9563156**                                                  | $661.00                            | $661.00                    | Violation of  30 C.F.R. § 77.404(a), 993K Caterpillar Front-End Loader Co. No. L465  not maintained in safe operating condition. 

Sustained as  Issued- No penalty reduction                                        |
| **9563157**

**(Associated  104(b) order No. 9563179****)** | $4,624.00                          | $4,624.00                  | Violation of  30 C.F.R. § 77.1606(c), defects affecting safety existed on 785C  Caterpillar Haulage Truck Co. No. RT263. Sustained as Issued- No penalty  reduction                                                  |
| **9563158**                                                  | $296.00                            | $296.00                    | Violation of  30 C.F.R. § 77.1605(k), rocks located along elevated roadway with no  berms or guards to prevent equipment or vehicle from traveling into sump. Sustained  as Issued- No penalty reduction             |
| **9563159**                                                  | $252.00                            | $252.00                    | Violation of  30 C.F.R. § 77.1605(b), park brake on white Dodge Blasting Truck not  functioning properly when tested. 

Sustained as  Issued- No penalty reduction                                                   |
| **9563160**                                                  | $252.00                            | $252.00                    | Violation of  30 C.F.R. § 77.1606(a), failure to record and report defects affecting  safety after pre-operational examination of white Dodge Blasting Truck. 

Sustained as  Issued- No penalty reduction           |
| **9563161**                                                  | $4,161.00                          | $1,869.00                  | Violation of  30 C.F.R. § 77.1303(h), certified blaster did not sure all persons were  cleared from blast area or sheltered. Modify the negligence from “moderate”  to “low.” **Penalty reduction of 55%.**          |
| **9563171**                                                  | $1,471.00                          | $1,471.00                  | Violation of  30 C.F.R. § 77.1001, loose hazardous material not stripped for a safe  distance along the highwall in the 

Sustained as  Issued- No penalty reduction                                                 |
| **9563172**                                                  | $1,156.00                          | $1,156.00                  | Violation of  30 C.F.R. § 77.1606(c), defects affecting safety in D11R Caterpillar  Dozer Co. No. DZ040. Sustained as Issued- No penalty reduction                                                                    |
| **9563173**                                                  | $407.00                            | $407.00                    | Violation of  30 C.F.R. § 77.205(a), safe means of access not provided and maintained  on 785D Caterpillar Haulage Truck Co. NO. MSY113. 

Sustained as  Issued-No penalty reduction                                 |
| **9563174**                                                  | $1,156.00                          | $1,156.00                  | Violation of  30 C.F.R. § 77.1606(c), defects affecting safety on 785C Caterpillar  Haulage Truck Co. No. RT001. 

Sustained as  Issued- No penalty reduction                                                        |
| **9563175**                                                  | $4,884.00                          | $4,884.00                  | Violation of  30 C.F.R. § 77.1000, failure to follow established ground control plan. 

Sustained as  Issued- No penalty reduction                                                                                    |
| **9563176**                                                  | $296.00                            | $296.00                    | Violation of  30 C.F.R. § 77.1713(c), failure to record nature and location of  hazardous conditions after examination. Sustained as Issued- No penalty  reduction                                                   |
| **9563183**                                                  | $442.00                            | $442.00                    | Violation of  30 C.F.R. § 77.1606(c), damage to driver’s seat belt on Freightliner  Mechanic Truck Co. No. MT-665. 

Sustained as  Issued- No penalty reduction                                                      |

 
| **9563188** | $4,507.00      | $910.00        | Violation of  30 C.F.R. § 48.26, independent contract mechanics working on the  property not provided Experienced Miner Training. Modify the gravity from  “reasonably likely” to “unlikely” and from “S&S” to “non-S&S” with a  penalty reduction in accordance with 30 C.F.R. part 100.3.

**Penalty reduction  of 80%.**                  |
|-------------|----------------|----------------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| **9563189** | $3,274.00      | $987.00        | Violation of  30 C.F.R. § 77.1606(c), defects affecting safety on Volvo Fuel and Oil  Service Truck Co. No. 900. Modify the gravity from “fatal” to “lost workdays  or restricted duty” with a penalty reduction in accordance with 30 C.F.R.  part 100.3. 

**Penalty  reduction of 70%**                                                           |
| **TOTAL**   | **$28,246.00** | **$20,070.00** | **Total penalty reduction of  29%**                                                                                                                                                                                                                                                                                                                           |

 

**CitationNo. 9563157 and Associated****104(b) Order No. 9563179**

 

Citation No. 9563157 was issued on January 18, 2022, for aviolation of 30 C.F.R. § 77.1606(c). Titled “Loading and haulageequipment; inspection and maintenance,” this standard specifies that“[e]quipment defects affecting safety shall be corrected before the equipmentis used.” 30 C.F.R. § 77.1606(c).

 

Thecitation read:

 

The followingdefects affecting safety existed on the 785C Caterpillar Haulage Truck co. No.RT263:

1. The left rearstrut is bottoming out.

2. The bed gussetlocated near the left side of the bed hinge pin area is cracked.

3. The bed gussetlocated near the right side of the bed hinge pin area is cracked.

4. Excessive slackexisted from the right side top hoist cylinder. This is where the cylinderconnects to the truck bed.

5. An excessiveantifreeze leak existed from the left side are of the engine. Steady streams ofantifreeze could been seen running down from the left side.

6. The left sidefront strut is bottoming out.

7. The right frontstrut is leaking oil.

8. A wire wasdisconnected front he right rear brake canister over stroke switch.

9. The drivers sidewindow would not roll up when tested.

10. Drivers sidedoor seal was damaged and paper towels were stuffed in areas to seal the doorin the back corner. Also the door striker is taped up to keep the door closedcompletely.

This truck was beingoperated in the Grapevine North Pit Area. Defects affecting safety shall becorrect before the equipment is used.

 

Standard 77.1606(c)was cited 53 times in two years at mine 4608930 (53 to the operator, 0 to acontractor).

 

Pet. fora Civil Penalty at 66-67.

 

Forgravity, likelihood of injury was found to be “unlikely,” and injury couldreasonably be expected to result in “lost workdays or restricted duty,”affecting one person. *Id*. at 66. The violation was not found to besignificant and substantial. *Id*. Negligence was found to be “high.” *Id*.The citation was continued on January 24, 2022, when 

 

Repair work has been hampered by limited personnel tocomplete the repairs. The mine operator has removed the equipment from serviceuntil these repairs can be completed.

 

*Id*.at 68.

 

TheSecretary moves to keep the citation as issued, with no reduction in penalty.Mot. to Approve Settlement at 3.

 

Order No.9563179 was issued on February 1, 2022, as a 104(b) order in connection with CitationNo. 9563157. The Secretary refused to supply the Court with the (b) order. Themine operator, through its counsel, provided the document. The Court hasentered the document in eCMS for this docket. The order read:

 

A reasonable effortwas not made by the mine operator to insure that all conditions were correctedon the 785C Caterpillar Haulage Truck Co. No. RT263. 8 conditions have not beencorrected in a reasonable amount of time based on the conditions that existed.

**Standard77.1606(c) was cited 58 times in two years at mine 4608930 (58 to the operator,0 to a contractor).**

 

104(b) OrdersAddendum at 9 (emphasis added).

 

The order wasterminated on February 10, 2022, when “[a]ll defects affecting safety, on the785C Caterpillar Haulage Truck, Co. No. RT263, that is operated on theGrapevine North Pit, have been corrected by a qualified person.” *Id*. at10.

 

** **

** **

** **

** **

**Analysis of Section 104(a)Citation No. 9563157 with its associated 104(b) Order****No. 9563179**

** **

****Citation No.9563157 has settled for the full amount proposed under the regular assessmentcalculation. The 10% reduction for good faith attempt to achieve rapidcompliance was denied. This is not surprising as the Respondent failed toachieve compliance for the violation only after a section 104(b) order wasissued 13 days after the 104(a) citation was issued. The Secretary refused toprovide the Court with the 104(b) order, even though it is undeniably animportant and vital part of the enforcement record for the violation. Ironically,the mine operator’s attorney stepped forward and provided the Court with the(b) order. 

 

            The Citation reflectsboth the significant nature and extent of the transgressions for the defectsaffecting safety subsection cited at 30 C.F.R.§ 77.1606(c). Ten independent defects, all of them conceded, wereinvolved. Worse, and underscoring the importance of the associated (b) order,thirteen days later eight (8) of the defects remained uncorrected. This greatdelay in abating the many defects is an important part of the story associatedwith this violation, and therefore while the Secretary’s hiding it isinappropriate in all instances, it is particularly so in this instance. **Whena matter is before the Commission, as it is in this instance by the filing of apetition for the assessment of a civil penalty, it is before the Commission. Allof it.****Not just those parts the Secretary unilaterally wishes to reveal.**

As theCommission has noted: 

 

**[t]he purpose ofsection 104(b) is to spur swift abatement of existing violations and compeloperator compliance with the Act. ... The issuance of an order for a failure toabate promotes compliance by imposing a consequence on an operator that refusesto comply with the Mine Act. Moreover, penalizing an operator's refusal tocomply with the Act in some instances, while allowing its refusal in others,falls short of fulfilling the Act's purpose. Thus, the Secretary's broadinterpretation is consistent with the remedial nature of the Act, itsstructure, and its progressive enforcement scheme of increasingly severesanctions that are applied when an operator incurs repeated violations kijulandrefuses to comply**. See 30 U.S.C. § 814(d), (e); *Pattison Sand Co. v.FMSHRC*, 688 F.3d 507, 513 (8th Cir. 2012). 

*HopkinsCounty Coal*, 38 FMSHRC 1317, 1335-1336 (June 2016) (emphasis added).

** **

**Presentedwith the Secretary’s contention that the Commission has no business viewingsection 104(b) orders where a citation is affirmed as issued and the proposedpenalty is paid in full, the Court posits “Why stop there?”**

** **

**There is nological reason or distinction for the Secretary not to expand its 104(b) orderban to also prevent any and all 104(a) citations from the Commission’s eyespost the filing of its civil penalty petition, blocking their review where acitation is paid in full with no changes to the inspector’s evaluation. If thatdoesn’t make sense, and the Court agrees it does not, there is similarly norational basis to block review of (b) orders. Such orders are as much a part ofthe enforcement record as 104(a) citations.**

** **

**One might also ask, “what’s the harm?” The answer isthat anyone reading the motion would be seriously misled about the enforcementhistory for these citations. On the face of the motion, one would not learnthat the elevated enforcement step, issuance of section 104(b) orders, wasrequired. This does a disservice to miners and the public.   The Commission, inthis Court’s view, should not be a party to the incomplete recounting. To allowit is analogous to issuing a book with the last chapter missing, but with noalert to the reader that there was more to the story.**

 

It is perplexingthat the Secretary, acting through MSHA would take this recalcitrant attitudeand that the mine operator, through its cooperative legal counsel, would be thesource for the relevant information. 

 

In its December13, 2022, Order Certifying Case for Interlocutory Review, the Court noted theimportance of (b) orders: 

 

The structure of the Mine Actunderscores the importance of 104(b) orders. As the Court noted in its June 22,2022 Order in *Perry County Resources*, 44 FMSHRC 501 (June 2022), 

 

The Court does not believe that the fact a violation ispaid in full, with no modifications made to the issuing inspector’s evaluation,is the end of the matter. The principle behind this view is very basic,in carrying out its review responsibilities under 30 U.S.C. § 820(k), the Court is obligated to be fully informed about thecircumstances surrounding the issuance of a citation or an order. [The Citationin issue] is part of this docket, but the documentary record concerning thisadmitted violation is incomplete. This is because a section 104(b) order wasissued by the inspector in connection with that Citation . . . The Secretarymay not decide to selectively secrete such information from the Court, thepublic and especially from the miners it is charged to protect. From thisCourt’s perspective, such a stance is inimical to the spirit of the Mine Act.

 

A Section 104(b) order is an important feature of the MineAct. Section 104(b) of the Mine Act states:

 

If, upon any follow-up inspection of a coal or other mine,an authorized representative of the Secretary finds (1) that a violationdescribed in a citation issued pursuant to subsection (a) has not been totallyabated within the period of time as originally fixed therein ... and (2) that theperiod of time for abatement should not be further extended, he shall determinethe extent of the area affected by the violation and shall promptly issue anorder requiring the operator of such mine or his agent to immediately cause allpersons, except those persons referred to in subsection (c), to be withdrawnfrom, and to be prohibited from entering, such area until an authorized representative of theSecretary determines that such violation has been abated.

 

30 U.S.C. § 814(b).

 

As the Commission has noted, such orders have significancein their own right. It has observed that:

 

First, section 105(a), by its terms, does not distinguishbetween the different types of orders that can be issued under section 104.Absent any language in the statute suggesting that the Secretary cannot proposea penalty in connection with a section 104(b) order, we will not interpret thephrase “order under section 104” in section 105(a) to exclude section 104(b)orders.

 

Secondly, contrary to her claim, the Secretary may indeedassess a separate penalty for the failure to abate a violation. Section105(b)(1)(A) of the Mine Act provides in pertinent part:

 

If the Secretary has reason to believe that an operator hasfailed to correct a violation for which a citation has been issued within theperiod permitted for its correction, the Secretary shall notify the operator bycertified mail of such failure and of the penalty proposed to be assessed undersection 110(b) by reason of such failure and that the operator has 30 dayswithin which to notify the Secretary that he wishes to contest the Secretary’snotification of the proposed assessment of penalty.... 30 U.S.C. § 815(b)(1)(A). Consequently, section 110(b) of the Act and MSHA’sregulations authorize the Secretary to assess steep daily penalties. *See*30 U.S.C. § 820(b); 30 C.F.R. § 100.5(c) (“Any operator who fails to correct a violation for whicha citation has been issued under section 104(a) of the Mine Act within theperiod permitted for its correction may be assessed a civil penalty of not morethan $6,500 for each day during which such failure or violation continues.”).

 

Moreover, the fact that a withdrawal order has been issuedincreases the likelihood that such a penalty will be assessed. The legislativehistory of the Mine Act states that under section 105(b)(1)(A), like undersection 105(a):

 

**[T]he Secretary is to similarly notify** operators and **miners’ representatives** when hebelieves that an operator has failed to abate a violation within the specifiedabatement period. *In most cases, a failure to abate closure order will havebeen issued pursuant to Section [104(b)]*. The notice of proposed **penalty**to operators in such cases shall state that a [**104**(**b**)] **order**has been issued and the **penalty** provided by Section [110(b)] of the Actshall also be proposed. *This **penalty** shall be proposed in addition tothe **penalty** for the underlying violation required by Section [110(a)] ofthe Act.*S. Rep. No. 95-181, at 34-35 (1977), *reprinted in* Senate Subcomm. on Labor,Comm. on Human Res., *Legislative History of the Federal Mine Safety andHealth Act of 1977*, at 622-23 (1978).

 

In addition, even if no separate penalty for failure toabate a violation is assessed, the failure to abate allegation upon which asection 104(b) withdrawal order rests, ifestablished, increases the amount of the penalty that is ultimately assessedfor the underlying violation. As Judge Zielinski recognized in his firstdecision, ‘the demonstrated good faith of the person charged in attempting toachieve rapid compliance after notification of a violation is one of thefactors that the Commission must consider in fixing the amount of a civilpenalty.’ 28 FMSHRC at 413 (quoting section 110(i) of the Mine Act, 30 U.S.C. § 820(i)). Thus, the sanction for a failure to abate is not only awithdrawal order, but, likely, a higher penalty when the Secretary eventuallyassesses a penalty for the original violative condition that allegedly was notabated in a timely fashion. *See NAACO Mining Co.*, 9 FMSHRC 1541, 1545(Sept. 1987) (‘Under sections 104(b) and 110(b), if the operator does notcorrect the violation within the prescribed period, the more severe sanction ofa withdrawal order is required, and a greater civil penalty is assessed.’).

 

*UMWA v. Maple CreekMining*, 29 FMSHRC 583, 592-594 (July 2007)(emphases added).

 

Per the above decision, the Commission recognized theindependent importance of 104(b) orders may be the subject of a penalty intheir own right, citing section 104(b)(1)(A).The legislative history, as also cited by the Commission, makes this plain:“[t]he notice of proposed **penalty** to operators in such cases shall statethat a **[104(b)] order** has been issued and the **penalty** provided bySection [110(b)] of the Act shall also be proposed. *This****penalty****shall be proposed in addition to the****penalty****for theunderlying violation required by Section [110(a)] of the Act.*” *Id.*at 593. (emphases in original Order)*.*

 

Though no additional reasons are needed to requiredisclosure of the (b) order in this matter, the record does not reveal if theSecretary met his obligation to notify the miners’ representatives when, ashere, he believed that an operator has failed to abate a violation within thespecified abatement period.

 

This Court is well-aware that its review of settlements ispresently cabined within the terms of the Commission’s decisions in *TheAmerican Coal Co.*, 40 FMSHRC 983 (Aug. 2018) (“*AmCoal*”) and *RockwellMining, LLC*, 40 FMSHRC 994 (Aug. 2018) and that under those decisions theCourt’s review role has become statistically perfunctory. However, there is still an obligation andduty to examine *each* citation *and order* within a submitteddocket, even if the citation is not contested and paid as originally assessed.The responsibility to ensure that there is*a complete record* is separate and apart from, and not mutually exclusiveto, the review of violations that have settled, whether such settlements arefor the full amount proposed or some lesser amount.

 

Frankly, the Court is at a loss to understand why theSecretary of Labor is not in full support of providing the *full record*of the enforcement actions taken in connection with an admitted 104(a) citation.In this matter that involves hiding the inspector’s issuance of a 104(b) orderin connection with that citation. The apparent decision to secrete suchinformation from the Court, the public and especially from the miners it ischarged to protect is perplexing and at odds with the admonition from severalfederal courts invoking Justice Louis D. Brandeis’ remark that “Sunlight issaid to be the best of disinfectants.” *See, for example*, *Argus v. U.S. Dept Agriculture,* 740 F.3d 1172 (8th Cir. 2014), wherein Argus invoked the federal law meant to bringdisclosure sunlight to the government bureaucracy, in its request to seespending information from the U.S. Department of Agriculture under the Freedomof Information Act, *5 U.S.C. § 552**.* To the same effectas the Secretary has done here, the Department of Agriculture, with littleexplanation, refused disclosure. Reversing the lower court’s determination thatthe information sought was exempt from disclosure, the Eighth Circuit took noteof Justice Louis D. Brandeis’ remark about the disinfecting benefit of sunlight.*Id.* at 1173, citing *OtherPeople’s Money* 92 (1914).

 

*Id.* at 503-506(footnotes omitted).

 

** **

** **

**Analysis of the Citationsinvolving the Secretary’s modifications of the inspector’s evaluations withaccompanying significant penalty reductions.**

** **

** **

**Citation No. 9563161**

 

Citation No. 9563161 was issued on April 19, 2022, fora violation of 30 C.F.R. § 77.1303(h). Titled“Explosives, handling and use,” the standard specifies that “Ample warningshall be given before blasts are fired. All persons shall be cleared andremoved from the blasting area unless suitable blasting shelters are providedto protect men endangered by concussion or flyrock from blasting.” 30C.F.R. § 77.1303(h). 

 

            The citation read:

 

Thecertified blaster did not ensure that all persons were cleared from the blastarea or that all persons were in suitable blasting shelter to protect personsendangered by flyrock from blasting. A front-end loader was hit by flyrock fromblasting. The loader operator was setting inside the operators cab when theflyrock hit the loader. The rock hit the left side tilt cylinder in front ofthe cab where the pin is located. It is reasoanbly likey if this conditioncontinues to exist an accident will occur. All persons shall be cleared andremoved from the blasting area unless suitable blasting shelters are providedto protect men endangered by concussion or flyrock from blasting.

 

Pet.for a Civil Penalty at 82.

 

            Forgravity, likelihood of injury was found to be “reasonably likely,” and thatthe injury could reasonably be expected to be “fatal,” affecting one person. *Id*.Accordingly, the violation was found to be significant and substantial. *Id*.Negligence was found to be “moderate.” *Id*.  The citation was terminatedon January 24, 2022, when “[t]he mine operator ha[d] retrainedthe blaster and blaster helpers on the Blasting Safety Precautions in theAcknowledge[d] Ground Control Plan. The training has been documented. Alsoobserved the loading and blasting cycle.” *Id*. at 83.

 

The Secretary moves to modify the citation, changing thenegligence finding from “moderate” to “low,” offering the following in support:

 

Citation #9563161 will bemodified to “low” negligence, with a reduction in penalty in accordance withthe 30 CFR part 100.3. The Respondent contends that the negligence of thecitation was overevaluated and should not have been issued as “moderate”. Respondentwould argue at hearing that the company was in compliance with their approvedplan at the time of the accident. Additionally, no adverse conditions wereobserved by the certified blaster prior to the shot. The Secretaryrecognizes that the ALJ might find merit in the facts and arguments presentedby the Respondent and in light of the contested evidence and given theuncertainties of litigation, the Secretary has agreed to modify the negligencefrom “moderate” to “low”, and reduce the penalty for citation #9563161 from$4,161 to $1,869, and the Respondent has agreed to pay the reduced penalty.

            Mot. to ApproveSettlement at 3-4.

 

**Analysis for Citation No. 9563161**

** **

Citation No.9563161. The Secretary has agreed to a**55% reduction in the penalty** forthis now-admitted violation. In pursuit of the very large reduction in theregularly assessed penalty and the accompanying redesignation of the negligencefrom moderate to low, the Secretary asserts that *the judge* “might findmerit in the facts and arguments presented by the Respondent,” but does notreveal his own evaluation of the merits of those assertions. Given the presentedfacts, these changes do not appear to be warranted. 

 

The standard,now admitted as having been violated, presents no exceptions to its requirementthat “[a]ll persons shall be cleared and removed from the blasting area ...toprotect men endangered by concussion or flyrock from blasting.” 30 C.F.R.§ 77.1303(h). Here, the uncontested facts are that a “front-end loader washit by flyrock *from blasting*. The loader operator was s[i]tting insidethe operators cab when the flyrock hit the loader.” Pet. for a Civil Penalty at82 (emphasis added). Obviously, as the loader was hit by flyrock and theoperator was in the loader at that time, the standard was violated.

 

Thejustification for designating the negligence as low, with low meaning thepresence of *considerable* mitigating circumstances, is without merit.This is because the company’s claim that it was in compliance with theirapproved plan at the time of the accident and that no adverse conditions wereobserved by the certified blaster prior to the shot are of the ‘other safetymeasures taken’ ilk. Theseexcuses do not cut it, per decisions by the U.S. Courts of Appeals.[4]

 

It is undeniablethat all persons were not cleared and removed from the blasting area. Thus, theharm the standard addresses occurred. 

 

The Court also notesthat the issuing inspector had marked the negligence associated with thecitation as “moderate.” That means the inspector had already determined there weremitigating circumstances. However, qualifying for “low negligence” requires thepresence of “**considerable** mitigating circumstances.” 30 C.F.R. §100.3,Table X- Negligence (emphasis added). The provision states: “When applying thiscriterion, **MSHA considers mitigating circumstances which may include, butare not limited to, actions taken by the operator toprevent or correct hazardous conditions or practices**.” *Id*. at100.3(d) (emphasis added). Clearly, no actions taken by the operator to preventor correct hazardous conditions or practices have been identified. In theabsence of “considerable mitigation,” it is especially disconcerting that theSecretary would agree to reclassifying the negligence to “low” where theoperator occupied front-end loader was hit by flyrock from a blast. 

 

The standard, for which strictliability applies, was violated as all persons were not cleared and removedfrom the blasting area. The claim that the operator was in compliance with itsapproved plan is beside the point, as is the contention that the certifiedblaster did not observe any adverse conditions. Neither of these argumentsreduce the negligence involved and certainly do not constitute *considerable*mitigation.If flyrock from a blast hitting a miner occupied front-end loader can satisfy alow negligence designation for the reasons presented by the operator, then itis hard to conjure what would constitute moderate negligence. Undermining theoperator’s claims, the inspector noted that the blaster and the blasteroperators were retrained on the blasting safety precautions in the acknowledgedground control plan. Pet. for a Civil Penalty at 83.

 

In the Court’s opinion, based onthis record, the Secretary should not have acceded to this $2,292.00 reductionin the regularly assessed penalty. Were it permitted, the Court would haveasked several questions seeking the basis for the claimed “considerable”mitigation. 

 

 

**Citation No. 9563188**

 

            Citation No. 9563188was issued on February 2, 2022, for a violation of 30 C.F.R. § 48.26. Forthis now-admitted violation, titled “Experienced miner training,” in relevantpart, the standard specifies that:

 

(b) Experiencedminers must complete the training prescribed in this section before beginningwork duties. Each experienced miner returning to mining following an absence of5 years or more, must receive at least 8 hours of training. The training mustinclude the following instruction: 

(1)***Introduction to work environment.*** The courseshall include a visit and tour of the mine. The methods of mining or operationsutilized at the mine shall be observed and explained. 

(2)***Mandatory health and safety standards.*** Thecourse shall include the mandatory health and safety standards pertinent to thetasks to be assigned. 

(3)***Authority and responsibility of supervisors and miners'representatives.*********The course shall include a reviewand description of the line of authority of supervisors and miners'representatives and the responsibilities of such supervisors and miners'representatives; and an introduction to the operator's rules and the proceduresfor reporting hazards. 

(4)***Transportation controls and communication systems.***The course shall include instruction on the procedures in effect for riding onand in mine conveyances; the controls for the transportation of miners andmaterials; and the use of the mine communication systems, warning signals, anddirectional signs. 

(5)***Escape and emergency evacuation plans; firewarning andfirefighting.*** The course must include a review of the mineescape system and the escape and emergency evacuation plans in effect at themine, and instruction in the firewarning signals and firefighting procedures ineffect at the mine. 

(6)***Ground controls; working in areas of highwalls, water hazards,pits, and spoil banks; illumination and night work.*** The courseshall include, where applicable, an introduction to and instruction on thehighwall and ground control plans in effect at the mine; procedures for workingsafely in areas of highwalls, water hazards, pits, and spoil banks, theillumination of work areas, and safe work procedures for miners during hours ofdarkness. 

(7)***Hazard recognition.*** The course must include therecognition and avoidance of hazards present in the mine. 

(8)***Prevention of accidents.*** The course mustinclude a review of the general causes of accidents applicable to the mineenvironment, causes of specific accidents at the mine, and instruction inaccident prevention in the work environment. 

(9)***Emergency medical procedures.*** The course mustinclude instruction on the mine's emergency medical arrangements and thelocation of the mine's first aid equipment and supplies. 

(10)***Health.*** The course must include instruction onthe purpose of taking dust, noise, and other health measurements, whereapplicable; must review the health provisions of the Act; and must explainwarning labels and any health control plan in effect at the mine. 

(11)***Health and safety aspects of the tasks to which theexperienced miner is assigned.*** The course must includeinstruction in the health and safety aspects of the tasks assigned, includingthe safe work procedures of such tasks, information about the physical andhealth hazards of chemicals in the miner's work area, the protective measures aminer can take against these hazards, and the contents of the mine's HazComprogram. Experienced miners who must complete new task training under § 48.27do not need to take training under this paragraph. 

(12) Such othercourses as may be required by the District Manager based on circumstances andconditions at the mine. 

 

            30 C.F.R. § 48.26.

 

 

 

 

The citationread:

 

**The independentcontract mechanics that work throughout mine property on a daily bas[i]s were notprovided Experience[d] Miner Training**. The operator must withdraw bothmechanics from the property until the required training is received. **TheFederal Mine Safety and Health Act of 1977 declares that an untrained miner isa hazard to themselves and others.**

 

Petition at 103(emphasis added).

 

For gravity, likelihood of injurywas found to be “reasonably likely,” with the injury reasonably be expected tobe “fatal,” affecting two persons. *Id*. The violation was found to besignificant and substantial. *Id*. Negligence was found to be “moderate.” *Id*.The citation was terminated on February 2, 2022, when “Both mechanics have beenprovided with the required Experience Miner Training and the training has beendocumented on a MSHA Form 5000-23.” *Id*. at 104.

 

The Secretary moves to modify the citation, reducinggravity from “reasonably likely” to “unlikely” and removing the significant andsubstantial designation, offering the following in support:

 

Citation #9563188 will be modified to “unlikely” and “nonS&S” gravity, with a reduction in penalty per 30 CFR part 100.3. The Respondent contends that the gravity wasover-evaluated and should not have been issued as “reasonably likely” and“S&S”. Respondent would argue at hearing that the independent contractorswere experienced miners and had been working on mine property for several weeks.Additionally, all workers had been verbally informed of any and all hazards onmine property. The Secretary has exercised his discretion to modify thesignificant and substantial designation associated with citation #9563188. TheSecretary may exercise that discretion as part of a settlement. *Am.Aggregates of Michigan, Inc.*, 42 FMSHRC 570, 576-79 (Aug. 2020) (citing *MechanicsvilleConcrete,**Inc.*, 18 FMSHRC 877, 879-80 (June 1996)). The Secretaryrecognizes that the ALJ might find merit in the facts and arguments presentedby the Respondent and in light of the contested evidence and given the uncertaintiesof litigation, the Secretary has agreed to modify the gravity from “reasonablylikely” to “unlikely” and deleting the “S&S” finding, and reduce the penaltyfor citation #9563188 from $4,507 to $910, and the Respondent has agreed to paythe reduced penalty.

 

Motion at 4.

** **

** **

** **

** **

** **

**Analysisfor Citation No.****9563188**

** **

Citation No. 9563188 states that“[t]he independent contract mechanics that work throughout mine property on adaily bas[i]s were not provided Experience[d] Miner Training.”  Petition at103. The mechanics were withdrawn from the mine until the required training wasreceived. That event occurred later that day, at which point the citation wasterminated. For this now-admitted violation, the Secretary has agreed toredesignate the violation from reasonably likely to ‘unlikely.’ Motion at 4. Therecharacterization of gravity to ‘unlikely’ destroys the significant andsubstantial designation. 

 

The reasonsadvanced by the Respondent are, in the Court’s estimation, suspect. Thosereasons – that that the independent contractors were experienced miners and hadbeen working on mine property for several weeks and that all workers had been verballyinformed of any and all hazards on mine property – if endorsed, effectivelyemasculates the standard. As the inspector noted, the Mine Act itself declaresan untrained miner to be a hazard to himself and others. 30 U.S.C. §814(g)(1). Byaccepting the assertion that the mechanics were experienced and they’d beenworking on the mine for several weeks and they had been told *verbally*of‘any and all hazards’ on the mine property,” the Secretary has discarded hisown safety training standard. There is no exception in the standard for theexcuses advanced by the mine operator. To the contrary, that the mechanics hadbeen working, without the required training, is an aggravating factor. Assertingthat the mechanics had been verbally apprised of all hazards, an outlandishclaim, is no substitute either. In the Court’s opinion, on this record theSecretary has eviscerated the standard’sstatutory and regulatory requirement by adopting the operator’s excuses asgrounds for characterizing the gravity as unlikely. 

 

****Thus, the Court believes that the Secretary’s agreement toreclassify the likelihood of an injury or illness occurring to “unlikely” makesa mockery of the standard’s requirements. It is, after all, described as“experienced” miner training. Because it addresses such *experienced miners*,the idea that because the independent contractors were experienced miners bybackground, but not by the MSHA required training and the remark that they hadbeen working on mine property for several weeks suffices, neuters the standard.The latter argument amounts to a claim that by continuing to work without theMSHA required training, that training requirement evaporates. **The agreementfor an 80% (eighty percent) reduction in the penalty confirms this observation.**The standard does not speak of ‘experience’ in a vacuum. Instead, it spellsout, in detail, the required subjects of *required*training. Additionally,the idea that because the contractors had been on the job “for several weeks,”(an indisputably short period of time), makes the hazard unlikely, is anotherinstance of effectively negating the force of the standard. Last, the standard,detailed as it is, does not endorse the idea that *verbally* informing allminers of “any and all hazards” is a substitute. The Court believes that theSecretary should not be in the business of emasculating MSHA’s trainingrequirements. 

 

** **

** **

** **

**CitationNo. 9563189**

 

            CitationNo. 9563189 was issued on February 2, 2022, for a violation of 30 C.F.R. § 77.1606(c). Titled “Loadingand haulage equipment; inspection and maintenance,” this standard specifiesthat

 

(a) Mobileloading and haulage equipment shall be inspected by a competent person beforesuch equipment is placed in operation. Equipment defects affecting safety shallbe recorded and reported to the mine operator. 

(b) Carriers onaerial tramways, including loading and unloading mechanisms, shall be inspectedeach shift; brakes shall be inspected daily; ropes and supports shall beinspected as recommended by the manufacturer or as physical conditions warrant.Equipment defects affecting safety shall be reported to the mine operator. 

(c) Equipmentdefects affecting safety shall be corrected before the equipment is used. 

 

30 C.F.R.§ 77.1606.

 

The citation read:

 

The followingdefects affecting safety existed on the Volvo Fuel & Oil Service Truck Co.No. 900:

1. An air leakexisted on the fuel line switch which was causing the air to drop from both theprimary and secondary tanks.

2. The regulator onthe air compressor was not functioning properly when tested.

This truck isoperated throughout mine proper to service equipment. Defects affecting safety shallbe corrected before the equipment is used.

Standard 77.1606(c)was cited 63 times in two years at mine 4608930 (62to the operator, 1 to a contractor). 

 

Petition at 105.

 

Forgravity, likelihood of injury was found to be “unlikely,” and injury couldreasonably be expected to be “fatal,” affecting one person. *Id*. Theviolation was not found to be significant and substantial. *Id*. Negligencewas found to be “moderate.” *Id*. The citation was terminated on February8, 2022, with the justification that 

 

The followingactions have been taken to correct the conditions:

1. Installed a newair line on fuel valve and a air line under the rear of the truck.

2. Installed a newfitting on the air compressor.

 

*Id*. at 106.        

 

 

 

The Secretary movesto modify the citation, changing the gravity from “fatal” to “lost workdays orrestricted duty,” offering the following in support:

 

Citation #9563189will be modified to “lost workdays or restricted duty” gravity, injury or illnessexpected, with a reduction in penalty in accordance with the 30 CFR part 100.3.The Respondent contends that the gravity of the citation was over-evaluated andshould not have been issued as “fatal”. Respondentwould argue at hearing that the cited conditions would not cause fatal injuriesto miners. The cited truck is only used to fuel, oil, and grease equipment onlevel loads at slow speeds. Additionally, all brakes worked properly whentested. The Secretary recognizes that the ALJ might find merit in the facts andarguments presented by the Respondent and in light of the contested evidenceand given the uncertainties of litigation, the Secretary has agreed to modifythe gravity from “fatal” to “lost workdays or restricted duty,” and reduce the penaltyfor citation #9563189 from $3,274 to $987, and the Respondent has agreed to paythe reduced penalty.

 

Motion at 5.

 

**Analysis for Citation No. 9563189**

** **

This Citationinvolves not one, but two, safety defects on a fuel and oil service truck. Forthis now-admitted violation, the inspector found both an air leak on the fuelline switch, causing the air to drop from both the primary and secondary tanks,and additionally that the regulator on the air compressor was not functioningproperly upon being tested. Further, the corrections demonstrated that theadmitted hazards required significant actions as new air lines had to beinstalled on the fuel valve and on the rear of the truck, plus the aircompressor required a new fitting. To arrive at the Secretary’s 70% reductionin the penalty, the gravity was reduced to lost workdays or restricted duty. TheSecretary, per his customary approach, does not inform whether he consultedwith the issuing inspector’s view regarding this new assessment of the reasonablyexpected injury. The assertion that the cited truck is only used to fuel, oil,and grease equipment on level loads at slow speeds does not speak to the claimthat lost workdays or restricted duty would result. Those claims do nottranslate to demonstrate that hazards from a fuel line leak and the improperlyfunctioning air compressor would result in such diminished injuries. Nor is theassociation between the assertion that the brakes were properly working and thetwin conceded defects explained. 

 

            Further, examiningthe particulars in claimed support that an injury would not be fatal, theRespondent’s offering does not explain the relevance of the information, nordoes the motion present the alternative injury that would result. Would theinjury be permanently disabling, result in lost workdays, or no lost workdaysat all? No explanation is offered, merely the bald assertion that it would notbe fatal.  Certainly the assertion that the cited truck is only used to fuel,oil, and grease equipment on level loads at slow speed does not explain theclaim that no fatality would result. Nor does the claim that all brakes workedproperly when tested, as both are of the alternative putative safetyconsiderations not to considered. The Court, were it permitted, would haveseveral questions to ask of the Respondent regarding its claim. Finally, it isnoted that the Secretary remains mum regarding the Respondent’s claims,preferring once again to state only that *the Court*might find merit inthem. 

 

Last,it is noted that the standard cited for this now-admitted violation requiringthat equipment defects affecting safety shall be corrected before the equipmentis used, has been cited **63 times** in the two years at this mine, a factwhich should give pause by itself. Even within the original parent docket, WEVA2022-0301, which entailed 33 citations, before 16 of them were reallocated tothis docket, 12 (twelve) of the original 33 (thirty-three) citations involvedviolations of the cited *subsection*for this standard, 30 C.F.R. §77.1606**(c).**Those numbers alone should make one blanch when theSecretary has agreed to a **70% (seventy percent)** reduction in the penaltyfor this violation, producing a $2,287.00 (two-thousand two-hundred eighty-sevendollars) penalty reduction from the regularly proposed assessment. 

 

 

**ReasonableInquiry is not Permitted**

 

Despite the Court’s analysis andconcerns, regarding the three citations with significant penalty reductions, itis not permitted to make reasonable inquiry about the contentions advanced insettlement motions. This is because, under the Commission’s interpretation ofsection 110(k) of the Mine Act, Congress only intended that the three elementsas laid out in *AmCoal* and *Rockwell Mining, LLC*, 40 FMSHRC 994(Aug. 2018), need be considered under the Commission’s standard for review ofsettlement submissions. The settlement motion does not require more informationfrom the Secretary. 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.

 

The Commission has stated that theadministrative law judges have “**front line oversight**” of the settlementprocess and as such that it is an adjudicative function **that “necessarilyinvolves wide discretion**.” Despite those muscular words, the Commission hasclearly set forth that the Secretary is not required to offer any comment atall as to the merits of the Respondent’s arguments. 

 

Perthe Commission’s decisions in *AmCoal* and *Rockwell Mining*, toapprove a settlement motion there are three requirements. Meeting the first tworequirements is automatic and perfunctory.

 

(1)   **Themotion must state the penalty proposed by the Secretary**. 

 

This requirement is met in everycivil penalty petition, as the petition contains the proposed penalty. Theamount is rarely, if ever, an issue, and if in issue, it is resolved before thepenalty petition is filed.

 

(2)   **Theamount of the penalty agreed to in settlement**.

** **

This requirement is also automatic;there could not be a settlement motion without the parties stating the penaltyamount to which they have agreed.

 

(3)   **“Facts,”as the Commission has employed that term, in support of the penalty agreed toby the parties**.

 

In the context of settlementmotions, “facts” have an atypical meaning.[5]In discussing what constitute “facts” for settlements, the Commissionstated “there is no requirement that facts supporting a proposed settlementmust necessarily be submitted by the Secretary. Facts supporting a penaltyreduction in a settlement motion may be provided by any party individually orby parties collectively.” *AmCoal*at 990. The only associated requirementwith such*“facts”*is that*“there is a certification by the filingparty that any non-filing party has consented to the granting of the settlementmotion.*” *Id.* (emphasis added).

 

Accordingly, the Commissionrejected the view that a respondent’s assertions of fact need to “presentlegitimate questions of fact,” and further that the Secretary need not commentyea or nay to the facts asserted by a respondent. Instead, the Commission announcedthat “[f]acts alleged in a proposed settlement need not demonstrate a‘legitimate’ disagreement that can only be resolved by a hearing.” Instead, theCommission allows that parties may submit facts that reflect a mutual positionthat the parties have agreed is acceptable to them . . . ” *Id.*

 

It should not come as a surprisethat, under the Commission’s *AmCoal*test for review of settlements, allsuch motions are approved. In the rare instances where a judge has denied asettlement motion, post-*AmCoal*, those decisions have met with reversalsby the Commission. *Hopedale Mining*, 42 FMSHRC 589 (Aug. 2020), *AmericanAggregates*, 42 FMSHRC 570 (Aug. 2020) (Chairman Traynor and CommissionerJordan, dissenting).

 

As the motion meets theCommission’s standard for approving settlement motions and as the Court isduty-bound to faithfully apply the Commission’s present decisional holdingsregarding review of settlement motions according to the way the Commission hasinterpreted its review responsibilities under the unique review provision setforth in section 110(k) of the Mine Act and, applying those holdings, the Courtdetermines that this settlement, *as with all settlement motions presented tothis Court post-AmCoal*, also meets the Commission’s review criteriaandtherefore the motion is to be approved as appropriate.

 

Typically foundin the Secretary’s motions for approval of settlement is language along thelines that the parties seek to have the Court accept that it*acknowledgesand accepts the explanation for the agreed upon settlement*contained in theparties’ settlement motion and amendments*.* In this instance, theSecretary includes as proposed language that the Court has “considered therepresentations and documentation submitted, f[ound] that the assessment isreasonable and . . . conclude[d] that the proposed settlement is appropriateunder the criteria set forth in section 110(i) of the Act.” Draft Order at 3. TheCourt cannot subscribe to such language.[6]Rather, the Court’s review of settlement motions is confined to comparingthe parties’ motion with the three criteria set forth by the Commission in itsdecisions in *The American Coal Co.*, 40 FMSHRC983 (Aug. 2018) (“*AmCoal*”) and *Rockwell Mining, LLC*, 40 FMSHRC994 (Aug. 2018). 

 

The Court has considered the motionin the context of comparing it with the Commission’s *AmCoal* decision andfinds that it meets that decision’s standard of review. Accordingly, on thatbasis only, the motion to approve settlement is **GRANTED**, the citations containedin this docket are **MODIFIED** as set forth above and Respondent AppalachianResource West Virginia, LLC, is **ORDERED** to pay the Secretary of Laborthe sum of **$20,070.00** within 30 days of this decision.[7]

 

 

 

 

/s/William B. Moran

William B. Moran

Administrative Law Judge

 

 

 

 

 

 

 

Distribution:

 

K. Brad Oakley, Esq., Jackson Kelly PLLC, 100 W. MainStreet, Suite 700

Lexington, KY 40507 kboakley@jacksonkelly.com

 

Emily TolerScott, Esq., Counsel for Appellate Litigation, Office of the Solicitor

Division ofMine Safety & Health, 201 12th Street South, Suite 401, Arlington,VA 22202

scott.emily.t@dol.gov

 

David C.Trent, Conference & Litigation Representative, U.S. Department of Labor,MSHA 

4499 AppalachianHighway, Pineville WV 24874 Trent.david@dol.gov

 

 

----

[1]This docket wascreated when 16 citations (including one 104(a) citation with an associated104(b) order) from WEVA 2022-0301 were reallocated into this new docket. Orderfor Docket Reallocation, June 29, 2022.

 

[2]This DecisionApproving Settlement is being issued simultaneously with the Court’s DecisionApproving Settlement in WEVA 2022-0301 and the Court’s Decision regarding theSecretary’s December 20, 2022 Motion to Strike and to Approve Settlement forboth dockets.

 

[3]In spite of theChief Judge’s Order for Docket Reallocation, the Secretary elected, in effect,to re-consolidate the dockets into a single Motion, though it was filed on eCMSfor each docket. The Court, consistent with the Reallocation Order, continuesto treat the dockets separately.

[4]Federalcase law is clear that redundant safety measures are not to be considered inevaluating a hazard. For example, in *Knox Creek Coal*, 811 F.3d 148 (4thCir. 2016), that Court observed: 

 

“[i]f mine operatorscould avoid S & S liability—which is the primary sanction they fear underthe Mine Act—by complying with redundant safety standards, operators could pickand choose the standards with which they wished to comply.”...Such a policy wouldmake such standards “mandatory” in name only. It is therefore unsurprising thatother appellate courts have concluded that ‘[b]ecause redundant safety measureshave nothing to do with the violation, they are irrelevant to the [S & S]inquiry.’ Cumberland Coal, 717 F.3d at 1029; see also Buck Creek, 52 F.3d at136.

 

*Knox Creek Coal,* 811 F.3d 148, 162 (4th Cir. 2016).

 

Regarding this issue, in *ConsolidationCoal*, 895 F.3d 113, (D.C. Cir. 2018), the D.C. Circuit, referring to itsdecision in *Cumberland Coal Resources, LP v. Federal Mine Safety & HealthReview Commission*, 717 F.3d 1020 (D.C. Cir. 2013), noted that it:

 

interpreted thestatutory text to focus on the “nature” of “the violation” rather than anysurrounding circumstances. More to the point, the court held that“consideration of redundant safety measures,”—that is, “preventative measuresthat would have rendered both injuries from an emergency and the occurrence ofan emergency in the first place less likely”—“is inconsistent with the languageof [Section] 814(d)(1).” *Id.* at 1028–1029. 

 

*Id.* at118-119. 

 

[5]In settlements,“facts” do not mean things that are known or provedto be true, nor does the term mean something that has actual existence or apiece of information presented as having objective reality. *Fact*, Merriam-WebsterDictionary, https://www.merriam-webster.com/dictionary/fact(accessed Nov. 18, 2021). Accordingly, insettlements, a fact does not mean something that is true, nor is there arequirement that a statement of fact be verifiable.

 

[6]Nor does the Courtendorse, or agree with, the assertions commonly found in the Secretary’smotions for approval of settlements in which the Secretary claims that *afinal resolution of this matter in which all violations are resolved is ofsignificant enforcement value to the Secretary.*Neither does the Courtendorse or agree with the Secretary’s claim that*the modifications to thecitations are immaterial,*nor with the accompanying claim that*theSecretary’s evaluation of these citations, as modified, remain preserved forfuture enforcement actions.*The Court has never been informed of any such**value. Such boilerplate claims are almost always hollow, in view of theactual modifications and penalty reductions that makeup these motions.

 

7 It is preferred that penalties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 important to include Docket and A.C. Numbers with the payment.