**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, UNITED STATES DEPARTMENT OF LABOR, MINE  SAFETY AND HEALTH ADMINISTRATION (MSHA),

   Petitioner

 

v.

 
POCAHONTAS COAL  COMPANY LLC,
                           Respondent                            |  

 

 

  |  

  |  

CIVIL PENALTY PROCEEDING

 

Docket No. WEVA 2022-0489

AC No. 46-08878-557759

 

 

 

 

Mine: Affinity Mine |
|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------------------------------|----------------|--------------------------------------------------------------------------------------------------------------------------------------------------|

** **

**DECISIONAPPROVING SETTLEMENT**

** **

Before: Judge William Moran

** **

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 the Motion to Approve Settlementof the citations involved in this matter.The parties move to modifyand reduce the assessed penalty of one citation, as stated below. The overallpenalty will be reduced from original assessed amount of **$1,042.00**to**$272.00.**

 
| **Citation** | **MSHA’s Proposed  Penalty**   | **Settlement  Amount** | **Other  modifications to citation**                                                                                                                                                                                                            |
|--------------|---------------------------------|-------------------------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| 9556249      | $133.00                         | $133.00                 | Violation of 30  C.F.R. § 75.512, forklift not maintained according to wiring schematic  in service manual. Sustained as Issued.**Minimum Penalty Assessed**                                                                              |
| 9556250      | $909.00                         | $139.00                 | Violation of 30  C.F.R. § 72.630(b), roof bolting machine’s dust collection system not maintained.  Modify to “low” negligence, “unlikely” likelihood of injury or illness, and  non-S&S.

**Penalty  Reduction of 85%**            |
| **TOTAL**    | **$1,042.00**                   | **$272.00**             | **Total penalty  reduction of seventy-four percent (74%)**                                                                                                                                                                                      |

 

Both citations inthis docket were issued as 104(a) citations, regularly assessed, and received a10% penalty reduction for good faith. 

**Citation No. 9556250**

 

            Citation No. 9556250 was issued on May 25, 2022,for a violation of 30 C.F.R. § 72.630(b). Titled “Drill dust control atunderground areas of underground mines,” the standard specifies that: 

 

(b) Dust collectors.Dust collectors shall be maintained in permissible and operating condition.Dust collectors approved under Part 33 - Dust Collectors for Use in Connectionwith Rock Drilling in Coal Mines of this title or under Bureau of MinesSchedule 25B are permissible dust collectors for the purpose of this section.

 

30 C.F.R. § 72.630(b).

 

The citation read:

 

Standard 72.630(b)was cited 9 times in two years at mine 4608878 (9 to the operator, 0 to acontractor). Upon inspection of the #2 Section C/N# 71 roof bolting machine itwas observed that the dust collection system was not being maintained inpermissible and operating condition. When checked there was rock drill dust1/16" inch deep on the off-side of the machine that had been allowed toaccumulate behind the primary dust filters inside the duct work. Upon furtherexamination rock drill dust in excess of 1/4" inch in depth was alsopresent inside the secondary collection compartment and around the secondaryfilters on the off-side of the machine. This condition allowed rock drill dustto be visually suspended in the air space around the bolter both during theinitial start and during operation. This violation if allowed to exist wouldresult in miners exposure to the harmful elements present in rock drill dustand would result in permanently disabling injuries such as silicosis or coalminers pneumoconiosis.

 

Pet. for a Civil Penalty at 18.

 

For gravity, likelihood of injurywas found to be “reasonably likely,” and injury could reasonably be expected tobe “permanently disabling,” affecting 2 people. *Id*. The violation wasfound to be significant and substantial. *Id*. Negligence was found to be“moderate.” *Id*. The citation was terminated on May 26, 2022. Asjustification for the termination, the inspector wrote: “The dust collectionsystem has been cleaned and is now functioning correctly.” *Id*at 19.

 

TheSecretary moves to modify the citation, changing the likelihood of injury orillness to “unlikely,” removing the S&S designation, reducing thenegligence to “low,” and reducing the penalty to $139.00, offering thefollowing in support:

 

Order No. 9556250shall be modified from Reasonably Likely to Unlikely, S&S to Non S&Sand from Moderate Negligence to Low. The Respondent would have argued at thehearing that this citation was issued on the midnight shift when the boltingmachine was not in operation and that the curtain side roof bolter operatorwore a Personal Dust Monitor on the previous shift and that the whole shiftexposure was just 0.152 mg/cubic meter, an incredibly low and compliant result.Therefore, the condition did not cause exposure to hazardous respirable dust.Respondent would further argue that the condition was not obvious and had comeinto existence following the weekly examination 6 days prior.

 

Taking into accountthe Respondent’s arguments, the facts and circumstances surrounding the violation,the available evidence, the Secretary has decided to modify the citation fromReasonably Likely to Unlikely, S&S to Non S&S and from ModerateNegligence to Low and to reduce the Penalty to $139.00 for settlement purposes.Respondent has agreed to accept the citation as modified and pay theagreed-upon penalty. No other modifications are made.

 

Mot. to Approve Settlement at 3.

 

 

**Analysis**

** **

            TheCourt considers the settlement for Citation No. 9556250 with antipathy. Pneumoconiosis,“Black Lung” is an insidious disease. Speaking in the past tense about thecondition he found, the inspector noted:

 

[t]his condition ***allowed***rock drill dust to be visually suspended in the air space around the bolterboth during the initial start and during operation. This violation if allowedto exist would result in miners exposure to the harmful elements present inrock drill dust and would result in permanently disabling injuries such assilicosis or coal miners pneumoconiosis. 

 

Petition at 18.

 

            Each instance ofpotential exposure to the lung-crippling coal dust contributes to developingthis respiration smothering disease. It is the cumulative effect that impairs,not a single instance. By endorsing the “unlikely” designation, MSHA does nofavors to the miners it is charged with protecting. Here, the inspector foundthat the dust collection system on a roof bolting machine was not beingmaintained in permissible and operating condition and he identified twolocations on the machine with this issue. 

 

            MSHA compounds this mistake of calling theinjury as ‘unlikely,’ by accepting the idea that the curtain side roof bolteroperator wore a Personal Dust Monitor on the previous shift[1]and that the whole shift exposure was just 0.152 mg/cubic meter, an incrediblylow and compliant result. Even if true, such putative claims are not to beconsidered in evaluating likelihood and the significant and substantialdesignation. The federal courts of appeals have rejected the ‘alternativesafety measures’ argument raised by respondents when analyzing the significantand substantial designation. 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).

 

Further 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 

 

            Noris the mine operator ignorant of the cited requirement, having been cited forviolating it **nine (9) times** in the past two years. 

 

            In the Court’s opinion,reducing this now-admitted violation by **85%,** from a regularly assessedamount of $909.00 down to $139.00, virtually a minimum penalty, MSHA does adisservice to the miners it is charged with protecting. Such results raise therisk that operators may decide that a minimal fine is the better option thancompliance.

 

In spite of the concerns expressedabove, the Court finds that the motion meets the test for approval 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 *TheAmerican Coal Co.*, 40 FMSHRC 983 (Aug. 2018) (“*AmCoal*”) and *RockwellMining, LLC*, 40 FMSHRC 994 (Aug. 2018) must be shown.  

 

 

*In that light**only*, theCourt has considered the motion and finds that justification for the reductionin the penalty has been presented. Accordingly, the motion to approvesettlement is **GRANTED**. Respondent Pocahontas Coal Company LLC is **ORDERED**to pay the Secretary of Labor the sum of **$272.00**within 30 days of this decision.[2]

 

 

 

 

/s/William B. Moran

William B. Moran

Administrative Law Judge

 

 

 

 

 

 

Distribution:

 

Douglas W.Johnson, CLR, U.S. Department of Labor, MSHA, 1293 Airport Road, Beaver, WV25813 (johnson.douglas@dol.gov) 

 

Justin Chandler,STEPTOE & JOHNSON PLLC, Chase Tower, Seventeenth Floor, P.O. Box 1588,Charleston, WV 25326 (jonathan.ellis@steptoe-johnson.com)

 

 

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[1]The operator’sstatement is also an implicit admission that the condition existed on the priorshift and it couples this with the misguided notion that wearing a dust monitorlessens the hazard.

[2] 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.