**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.

 
COVOL FUELS NO.3  LLC,           
                           Respondent                                              |  

 

 

  |  

  |  

CIVIL PENALTY PROCEEDING

 

Docket No. KENT 2022-0040

A.C. No. 15-19702-549694

 

 

 

Mine: Straight Creek Mine

 

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** **

**DECISION DENYING MOTION TO APPROVESETTLEMENT**

Before: Judge 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 citation involved in this matter.The parties move to modify the citation, as stated below. The penalty would bereduced by **78%**, from the original assessed amount of**$3,546.00**to**$796.00**. As the Motion does not meet the Commission’s requirements forapproval of settlements, per its decisions in *The American Coal Co.*, 40FMSHRC 983 (Aug. 2018) (“*AmCoal*”) and *Rockwell Mining, LLC*, 40FMSHRC 994 (Aug. 2018), the Motion is **DENIED**.

 

| **Citation  Number** | **Proposed  Penalty** | **Settlement  Amount** | **Modification**                                                                           |
|-----------------------|------------------------|-------------------------|--------------------------------------------------------------------------------------------|
| 9233080               | $3,546.00              | $796.00                 | Reduction  in the likelihood of occurrence from “Occurred” to “Reasonably Likely”         |
| **Totals**            | **$3,546.00**          | **$796.00**             | **Seventy-Eight  (78%) Percent Penalty Reduction**                                        |

** **

**CitationNo. 9233080** was issued on December 16, 2021 for a violation of 30 C.F.R.§75.202(a). Titled “Protection from falls of roof, face and ribs,” the standardspecifies that “[t]he roof, face and ribs of areas where persons work or travelshall be supported or otherwise controlled to protect persons from hazardsrelated to falls of the roof, face or ribs and coal or rock bursts.” 30 C.F.R.§75.202(a).

 

The citation read:

** **

The mine operator isnot fully controlling the mine roof to protect person from falls of the roof. Whenchecked the mine roof has collapsed between the crosscuts 20 and 21 along the#6 entry of the primary escapeway. This roof fall is approximately 20 feet inwidth and 35 feet in length and 9 feet in thickness. This citation is beingissued in conjunction with 103k order# 9233079. 

 

Standard 75.202(a)was cited 4 times in two years at mine 1519702 (4 to the operator, 0 to a contractor).

 

Pet. for a CivilPenalty at 16.

 

For the gravityof the violation, the likelihood of injury or illness was marked by theinspector in his evaluation to have “occurred,” with the injury or illnessreasonably expected to be “fatal,” affecting one person. *Id*. Theviolation was found to be significant and substantial. *Id*. Negligencewas found to be moderate. *Id*. A 103(k)****Order, No. 9233079**,**was not included in the record, nor was the abatement document for theviolation. The latter action to terminate was due four days after the issuanceof the citation, on December 20, 2021. *Id*. Both these documents areessential for the Court to make an informed review of the Motion, per section110(k) of the Act.

 

The Secretarymoves to modify the citation, changing the likelihood from “occurred” to“reasonably likely,” supplying the following in support:

 

Basis of compromise:A reduction in the likelihood of an injury or illness to occur. 

 

There are factual disputes regarding the likelihood of an injuryproducing event.

 

The Respondentasserts it was unlikely for an accident to occur that would result in anyillness or injuries. The Respondent argues that no injury or illness occurredas a result of the cited condition. The Respondent further argues that theunplanned roof fall was in an area where miners do not normally work or travel,that no one was working at the time the unplanned fall occurred and that page2-3, of PH20-I-3, MSHA Citation and Order Writing Handbook, clearly states thatoccurred can only be checked when an injury or illness has actually occurred.Therefore, the Respondent concludes it was unlikely for an accident to occurthat would result in any illness or injury given the aforementioned facts. Forthe purpose of settlement, the Petitioner proposes, and the Respondent acceptsa reduction in the likelihood of occurrence from “Occurred” to “Reasonably Likely”.The parties have discussed the citation and propose a revised penalty of$796.00, which is consistent with the penalty table found in Part 100, 30CFR.

 

Mot. to ApproveSettlement at 3.

** **

**Analysis**

** **

****Thiscase presents a most unusual assertion. To begin, one must first comprehend theenormity of the roof fall – a roof collapse in the primary escapeway which wasapproximately 20 feet in width, 35 feet in length, and 9 feet in thickness. Thesefigures evince the enormously large roof fall. A fraction of that fall of roofwould’ve killed anyone who happened to be at that location when it occurred. 

 

            The Motion seeks toreduce the inspector’s gravity evaluation down from “Occurred,” bypassing“Highly Likely,” and arriving at “Reasonably Likely,” as the designation. TheRespondent presents two arguments in support of reducing the penalty by 78%from $3,546.00 to what the Court views as a non-incentivizing penalty amount at$796.00. One argument is that it was unlikely for an accident to occur thatwould result in any illness or injuries. This contention rests upon the factthat that the fall occurred in an area where miners do not normally work ortravel, and that no one was working at the time the unplanned fall. The secondargument is that MSHA can’t designate a violation as “Occurred” unless aninjury or illness “actually occurred.” The Motion claims there are “factualdisputes regarding the likelihood of an injury producing event,” even thoughRespondent’s arguments are not factual disputes but rather disagreement as to thelegal interpretation of the facts. Neither argument supports the “Reasonably Likely”gravity designation. 

 

            The first contention – that the fall was in an areawhere miners do not normally work or travel, and that no one was working at thetime the unplanned fall, runs afoul of well-established case law that aviolation must be considered in the context of continued normal miningoperations. An evaluation of the reasonable likelihood of injury should be madeassuming continued normal mining operations. *See U.S. Steel Mining Co*.,7 FMSHRC 1125, 1130 (Aug. 1985). “[T]he gravity determination requires apredictive inquiry into whether the violation is reasonably likely to result ina reasonably serious injury, *see Secretary of Labor v. Mathies Coal Co*.,6 FMSHRC 1, 3–4 (Jan. 1984), a prediction which may assume ‘continued normalmining operations,’ *U.S. Steel Mining Co*., 6 FMSHRC at 1574.” *RexCoal Co*.,*v. Sec’y of Lab., Mine Safety & Health Admin.,*630 F.App’x, 359, 363 (6th Cir. 2015). “An S&S determination must be made at thetime the citation is issued ‘without any assumptions as to abatement’ and inthe context of ‘continued normal mining operations.’ *Paramont Coal Co*.,37 FMSRHC 981, 985 (May 2015).” *Mach Mining,* 40FMSHRC 1, 6 (Jan. 2018).

 

 

Asto the second argument, that the Secretary may not designate a violation as“occurred,” under these circumstances, the Respondent looks to MSHA’s Citationand Order Writing Handbook. U.S. Dep’t of Lab., Mine Safety and Health Admin., *Citationand Order Writing Handbook*, *PH20-I-3* (Dec. 2020). (Handbook). It istrue that the Handbook states that “occurred” can only be checked when aninjury or illness has actually occurred. Handbook PH20-I-3 at page 2-3. Sinceno injury or illness actually occurred as a result of the cited condition,Respondent asserts that gravity box designation may not be checked. Instead,the Secretary and Respondent agree to reclassify the gravity as “reasonablylikely” to occur. 

 

However, this rationale doesn’t square with the requirement of the cited standard,30 C.F.R. §75.202(a), which specifies that “[t]he roof, face and ribs of areaswhere persons work or travel shall be supported or otherwise controlled toprotect persons from hazards related to falls of the roof, face or ribs andcoal or rock bursts.” Clearly, and with a staggeringly large failure, the roof inthis instance was not supported or otherwise controlled, and in thatsafety-enforcing sense, the gravity *occurred*. The gravity of theviolation should not turn on whether the mine operator had the sheer luck of nominer being at that location at that moment of inundation. If that were thetest, the agreement of the parties to designate the gravity as ‘reasonablylikely’ would not make sense either – no one was injured when the collapseoccurred, so following the line of reasoning regarding ‘occurred,’ it was not ‘reasonablylikely’ either and by that thinking ‘no likelihood’ should have been thedesignation. 

 

The Respondent’s unusual line of reasoning has been rejected. *See, e.g*.,*Clintwood Elkhorn Mining Co.*, 38 FMSHRC 458, 466 (Mar. 2016) (ALJ),upholding the inspector’s determination an injury reasonably expected to be“fatal” and “occurred” when a miner received abrasions and bruising in arunaway truck accident. The inspector “designated the injury as reasonablyexpected to result in a fatality because this type of accident -- a runawaytruck -- could have resulted, and had resulted, in fatalities in the past.” *Id*.

 

“As a general proposition, rules ofstatutory construction can be employed in the interpretation of administrativeregulations*. See C. D. Sands, 1A Sutherland Statutory Construction*, §31.06, p. 362 (1972). According to 2 Am. Jur. 2d, Administrative Law, § 307(1962), ‘rules made in the exercise of a power delegated by statute should beconstrued together with the statute to make, if possible, an effectual piece oflegislation in harmony with common sense and sound reason.’”*****Golden RCoal Co.,*****2 FMSHRC 446, 448-49 (Feb. 1980) (ALJ) 

“Itis also an established canon of statutory construction that a legislature’s wordsshould never be given a meaning that produces a stunningly counterintuitiveresult—at least if those words, read without undue straining, will bearanother, less jarring meaning.” *United States v. O’Neil*, 11 F.3d 292, 297 (1stCir. 1993). The principle is that statutes should not be readto produce illogical results which are at odds with the statute’s underlyingpurposes. *Consolidation Coal Co*., 14 FMSHRC 956, 963 (June 1992). In theCourt’s view, the construction urged by the Respondent produces such illogicalresults.

 

 

Further, the MSHA Handbook on Citation and Order Writing representsinternal agency guidance and policy directives that are not binding on theSecretary in his enforcement actions. *See, e.g., Mingo Logan Coal Co*.,19 FMSHRC 246, 250 (1997), *aff'd Mingo Logan Coal Co. v. Sec'y of Labor*,133 F.3d 916, *3 (4th Cir. 1988). The standard takes precedence over theHandbook, so in determining likelihood, the relevant event is not the injuryitself but the potentially injurious event that the standard exists to prevent,here, a massive roof collapse.

 

In addition, the Handbook is in tension with the wording of 30 C.F.R.§100.3(e),****which specifies that****“Gravity is determined by the likelihood of the *occurrenceof the event against which a standard is directed*.” (emphasis added). Theevent against which 30 C.F.R. §75.202(a) is directed – “falls of the roof, faceor ribs and coal or rock bursts,” – *did occur*, even though no miner wasinjured by the fall. The standard takes precedence over the Handbook, so indetermining likelihood, the relevant event is not the injury itself but thepotentially injurious event that the standard exists to prevent, a roofcollapse which in this instance would clearly be fatal.

 

That the mineoperator should be able to have a 78% reduction in the penalty assessed restingentirely that no one died is repugnant to the overarching principles of theMine Act and the Secretary’s duty to take care of the safety and health of ourNation’s miners. Permitting Respondent to avoid the higher penalty amount forthe roof fall because no miners were actually injured also frustrates thedeterrent aims of the civil penalty system. One of Congress’ central goals forthe Mine Act’s civil penalty scheme was to ensure “effective and meaningfulcompliance” by imposing penalties “of an amount which is sufficient to make itmore economical for an operator to comply with the Act’s requirements than itis to pay the penalties assessed and continue to operate while not incompliance.”[1] In theCourt’s view, the $796.00 hand slap does not accomplish Congress’ goal.

 

Beyond theremarks above, the Motion does not meet the Commission’s test for review ofsettlements because, even under its nonintuitive definition of ‘facts,’ themotion is deficient. This is because, at bottom, the Respondent is making alegal, not a factual, argument, about the proper evaluation of the gravity ofthe violation. The first two elements of the Commission’s test for review ofsettlements are always present, because without them no motion could bepresented. Those are: the amount of the penalty proposed by the Secretary, andthe amount of the penalty agreed to in settlement. Because no agreed-upon‘facts’ have been offered, but rather only the legal argument that one cannotdesignate the injury as ‘occurred’ unless there has been an injury, the Motionis deficient. 

 

There are other issues with the settlement motion. The citation wasissued in conjunction with a 103k order, Number 9233079. In carrying out itsresponsibilities under Section 110(k) the Court should be able to view thisrelevant document. In addition, the official record does not include thetermination document associated with the citation. Both documents constitutepart of the official record for this matter, and even under the Court’s limitedpurview, it should be able to view these essential parts of the record. Theyare to be part of the public record, not hidden from view. 

 

Respondent’s claims about miners’ absence in the area – nominers were working in the area at the time of the roof fall, and miners do nottypically work or travel in the area where the roof fall occurred – amount toan ersatz “redundant safety measures” argument, rejected by federalcourts.[2] Minersavoiding the area do not absolve Respondent of its obligation to follow allsafety standards.

 

 

 

 

 

 

 

 

The Court has considered the motionin the context of comparing it with the Commission’s *AmCoal* decision andfinds that it does not meet that decision’s standard of review. Accordingly,the motion to approve settlement is **DENIED.**

 

 

 

 

 

/s/William B. Moran

William B. Moran

Administrative Law Judge

 

 

Distribution:

 

Gary W. Oliver, Conference &Litigation Representative, U.S. Department of Labor, MSHA

3837 S. US Hwy 25E, Barbourville,KY 40906 oliver.gary@dol.gov

 

 

Eric S. Lewis, Covol Fuels No. 3LLC, Box 853, Pineville, KY 40977

eric@covolfuel.com

 

----

[1]S. Rep. 95-181, 41(1977). 

 

[2]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.