**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 2022-0301

AC No. 46-08930-551112

 

 

 

Mine: Grapevine  South Surface Mine

 

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** **

**DECISIONAPPROVING SETTLEMENT**

** **

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 for the citations and ordersinvolved in this matter. The parties move to modify the citations and orders, asstated below.[1]Thetotal penalty would be reduced accordingly, from the original assessed amount of**$29,668.00**to**$23,365.00.**Although the overall reduction for thedocket is 21%, two of the citations each received a penalty reduction of **80%**.

** **
| **Citation/Order**                                        | **MSHA’s**

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

**Amount** | **Other  modifications to citation/order**                                                                                                               |
|-----------------------------------------------------------|--------------------------------------|----------------------------|-----------------------------------------------------------------------------------------------------------------------------------------------------------|
| **9563136**

**(Associated  104(b) Order No. 9563148)**  | $626.00                              | $626.00                    | Violation of  30 C.F.R. § 77.1606(c), defects affecting safety on 777D Caterpillar  Haulage Truck  

Sustained as  Issued- No penalty reduction   |
| **9563137 (Associated  104 (b) Order**

**No. 9563147)** | $453.00                              | $453.00                    | Violation of  30 C.F.R. § 77.1605(d), non-functioning signal and brake lights, audible  warning alarm. Sustained as Issued - No penalty reduction  |

 
| **9563138 (Associated  104(b) Order No**. **9563177)**      | $934.00    | $934.00   | Violation of  30 C.F.R. § 77.1606(c), defects affecting safety on D10R Caterpillar  Dozer Co. No. D007. Sustained as Issued- No penalty reduction                                                                                                                                                                                                                                                                                                  |
|--------------------------------------------------------------|------------|-----------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| **9563139**                                                  | $407.00    | $407.00   | Violation of  30 C.F.R. § 77.1605(d), non-functioning lights on D10R Caterpillar Dozer  Co. No. D007. Sustained as Issued- No penalty reduction                                                                                                                                                                                                                                                                                                    |
| **9563140**                                                  | $296.00    | $296.00   | Violation of  30 C.F.R. § 77.1605(k), no berm provided on three sumps along elevated  haulroad. 

Sustained as  Issued-No penalty reduction                                                                                                                                                                                                                                                                                                       |
| **9563141**

**(Associated  104(b) Order No**. **9563182)** | $11,149.00 | $9,918.00 | Violation of  30 C.F.R. § 77.1605(d), non-functioning signal, brake, and high beam  lights, non-functioning horn. **Penalty Reduction of 11%**                                                                                                                                                                                                                                                                                                     |
| **9563142**

**(Associated  104(b) Order No. 9563181)**     | $1,393.00  | $1,393.00 | Violation of  30 C.F.R. § 77.1606(c), defects affecting safety on 785D Caterpillar  Haulage Truck Co. No. RT111. 

Sustained as  Issued- No penalty reduction                                                                                                                                                                                                                                                                                     |
| **9563143**

**(Associated  104(b) Order No. 4563178)**     | $1,393.00  | $1,393.00 | Violation of  30 C.F.R. § 77.1606(c), defects affecting safety on 785C Caterpillar  Haulage Truck Co. No. RT269. 

Sustained as  Issued- No penalty reduction                                                                                                                                                                                                                                                                                     |
| **9563144**                                                  | $1,471.00  | $296.00   | Violation of  30 C.F.R. § 77.1001, spoilbank not stripped for a safe distance from top  of the pit, not sloped to the angle of repose, toe of spoilbank has been dug  out, is not bermed off to prevent unauthorized access. 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%.**                  |

 
| **9563145**                                              | $1,253.00 | $1,253.00 | Violation of  30 C.F.R. § 77.1606(c), defects affecting safety on 980G Caterpillar  Front-End Loader Co. No. 1893. 

Sustained as  Issued- No penalty reduction                                                                                        |
|----------------------------------------------------------|-----------|-----------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| **9563146**

**(Associated  104(b) Order No. 9563180)** | $1,393.00 | $1,393.00 | Violation of  30 C.F.R. § 77.1606(c), defects affecting safety on 785D Caterpillar  Haulage Truck Co. No. RT112. 

Sustained as  Issued- No penalty reduction                                                                                          |
| **9563149**                                              | $1,253.00 | $1,253.00 | Violation of  30 C.F.R. § 77.1606(c), defects affecting safety on 992G Caterpillar  Front-End Loader Co. No. L001. 

Sustained as  Issued- No penalty reduction                                                                                        |
| **9563150**                                              | $133.00   | $133.00   | Violation of  30 C.F.R. § 77.1110, no permanent tag on portable fire extinguisher on  992G Caterpillar Front-End Loader Co. No. L001. 

Sustained as  Issued- No penalty reduction                                                                     |
| **9563151**                                              | $1,253.00 | $1,253.00 | Violation of  30 C.F.R. § 77.1606(c), defects affecting safety on Mack Fuel and Oil Service  Truck Co. No. GT400. Sustained as Issued- No penalty reduction                                                                                             |
| **9563152**                                              | $4,884.00 | $987.00   | Violation of  30 C.F.R. § 77.1004(b), 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%.**                  |
| **9563153**                                              | $716.00   | $716.00   | Violation of  30 C.F.R. § 77.1605(d), reverse lights, horn in operator’s cab of White  Dodge Blasting Truck not functioning properly. 

Sustained as  Issued- No penalty reduction                                                                     |

 
| **9563154** | $661.00        | $661.00            | Violation of  30 C.F.R. § 77.410(c), reverse warning alarm on 993K Caterpillar  Front-End Loader Co. No. L465 not maintained in functional condition. 

Sustained as  Issued- No penalty reduction  |
|-------------|----------------|--------------------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| **TOTAL**   | **$29,668.00** | ******$23,365.00** | **Total  penalty reduction of 21%**                                                                                                                                                                        |

** **

            Section 104(a)citations were issued for citation Nos. 9563136, 9563137, 9563138, 9563141, 9563142,9563143, and 9563146. These were followed up with section 104(b) orders. 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 and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).

 

            Forreasons not discernable to the Court, it cannot find a legitimate basis tosupport the Secretary’s decision to hide the duly issued 104(b) ordersassociated with seven citations in this docket, all as identified above.[2]

 

            The 104(a) citations,together with the associated (b) orders, are discussed here and will befollowed by a summary analysis. 

 

 

**Citation No. 9563136**

 

Citation No.9563136 was issued on January 10, 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 stated:

 

The followingdefects affecting safety existed on the 777D Caterpillar Haulage Truck Co. No. M03-546:

1. A large knotexisted on the side wall area of the left rear outside tire.

2. Oil was leakingfrom the right rear inside wheel area.

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

Standard 77.1606(c)was cited 44 times in two years at mine 4608930 (44 to the operator, 0 to acontractor).

 

Pet. for a CivilPenalty at 19.

 

            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*. The violation was not found to be significant and substantial. *Id*.Negligence was found to be “low.”

 

**Section 104 (b) Order No****. 9563148** wasissued in association with this citation on January 13, 2022. The (b) Order wasprovided by the Respondent’s attorney. The Court appreciates that cooperation. Theorder read:

 

**An apparenteffort was not made by the operator to correct all the conditions that werecited by MSHA on the 777D Caterpillar Haulage Truck Co. No. M03-546.****Thistruck was being operated in the Grapevine North PitArea with oil still leaking from the right rear inside wheel area.**

Standard 77.1606(c)was cited **50 times** in two years at mine 4608930 (50 to the operator, 0to a contractor).

 

104(b) OrderAddendum at 3 (emphasis added). The order was terminated on January 19, 2022,with the justification that

 

The followingactions have been taken to correct the following conditions:

1. A new tire hasbeen installed

2. Tighten up thebolts and steam cleaned.

 

*Id*. at 4.

 

**Thus, this(b) order reflects serious non-compliance with the underlying 104(a) citation,with the truck continuing to be operated in the Grapevine North Pit Area withone of the cited defects still uncorrected. It is noteworthy that the citedstandard was cited 50 times, all to the mine operator in the past two years.**

**Citation No. 9563137**

 

Citation No. 9563137 was issued on January 10, 2022,for a violation of 30 C.F.R. § 77.1605(d). Titled “Loading and haulageequipment,” the standard specifies that “[m]obile equipment shall be providedwith audible warning devices. Lights shall be provided on both ends whenrequired.” 30 C.F.R. § 77.1605(d).

 

The citation stated:

 

The followingconditions existed on the 777D Caterpillar HaulageTruck Co. No. M03-546:

1. Both frontmarker/signal lights were not functioning when tested.

2. Both rear brakelights were not functioning when tested.

3. The left rearsignal light was not functioning when tested.

4. The Level 3 audi[b]lewarning alarm which is located inside the operators cab was not functioningwhen tested.

This truck was beingoperated in the Grapevine North Pit Area. This truck is operated before andafter daylight hours. Mobile equipment shall be provided with audible warningdevices.

Lights shall beprovided on both ends when required

Standard 77.1605(d)was cited 16 times in two years at mine 4608930 (16 to the operator, 0 to acontractor).

 

Petition at 20.

 

            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*. The violation was not found to be significant and substantial. *Id*.Negligence was found to be “low.” *Id*. 

 

**Section 104(b) Order No****. 9563147** wasissued as a 104(b) order in connection with Citation No. 9563137 on January 13,2022. The order read:

 

No apparent effortwas made by the operator to correct all the conditions that were cited by MSHAon the 777D Caterpillar Haulage Truck Co. No. M03-546. This truck was being operated in the Grapevine North Pit Area withall the conditions still existing.

Standard 77.1605(d)was cited 19 times in two years at mine 4608930 (19 to the operator, 0 to acontractor).

 

104(b) Order Addendum at 1. 

 

 

 

The order was terminated on January19, 2022, with the justification that: 

 

The followingactions have been taken to correct the following conditions:

1. A new light hasbeen installed and the wiring repaired.

2. New lights havebeen installed and the wiring repaired.

3. A new light hasbeen installed and the wiring repaired.

4. The wiring hasbeen repaired.

 

*Id*. at 2.

 

**In the Court’sestimation this continued failure to correct multiple lighting defects alongwith a defective non-audible warning alarm is worse than the failure discussedjust above because *none* of the cited defects had been corrected at thetime the (b) order was issued and the truck continued being operated in theGrapevine North Pit Area.**

 

 

**Citation No. 9563138**

 

Citation No. 9563138 was issued on January 10, 2022,for a violation of 30 C.F.R. § 77.1606(c), *supra*.

 

The citation stated:

 

The followingdefects affecting safety existed on the D10RCaterpillar Dozer Co. No. D007:

1. A gap existed inthe top corner of the right hand door to the operators cab. With the doorclosed completely the outside of the cab was still visible.

2. Bolts weremissing in the floor board allowing the floor board to be loose and not properlysealed.

3. Oil was leakingout the right side final drive.

4. Oil could be seenleaking on the right side out of the frame of the dozer.

5. The seat in theoperators cab is bottomed out.

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

Standard 77.1606(c)was cited 44 times in two years at mine 4608930 (44 to the operator, 0 to acontractor).

 

Petition at 21.

 

For gravity,likelihood of injury was found to be “unlikely,” and injury could reasonably beexpected to be “permanently disabling,” affecting one person. *Id*. Theviolation was not found to be significant and substantial. *Id*.Negligence was found to be “low.” *Id*. The citation was continued onJanuary 13, 2022, with the justification that: 

 

Repairs are stillbeing conducted at this time. Most of the repairs have been completed. The mineoperator removed the dozer from service until the repairs could be completed,so more time has been granted.

 

*Id*. at22. 

 

The citation wascontinued again on January 18, 2022, with the justification that: 

 

Repairs are stillbeing conduct at this time. Some of the repairs have been completed. Repairwork has been hampered by parts availability and limited personnel to completethe repairs. The mine operator has removed the equipment from service untilthese repairs can be completed.

 

*Id*. at23. 

 

The citation wascontinued again on January 24, 2022, with the justification that: 

 

Repairs are still being conduct at thistime. The following repairs have been completed 1, 2, 4, and 5. Repair work hasbeen hampered by parts availability and limited personnel to complete therepairs. The mine operator has removed the equipment from service until theserepairs can be completed.

 

*Id*. at24.

 

**Section104(b) Order No**. **9563177** was issued on February 1, 2022, inassociation with Citation No. 9563138. 

 

The citationread:

 

A reasonable effortwas not made by the mine operator to insure all conditions were corrected onthe D10R Caterpillar Dozer Co. No. D007. Oil was still leaking from the rightside of the dozer. Oil could be seen coming out the right side frame of the dozer.This dozer was being operated in the Grapevine NorthPit Area with this condition still existing.

Standard 77.1606(c)was cited 56 times in two years at mine 4608930 (56 to the operator, 0 to acontractor).

 

104(b) Order Addendumat 5. 

 

The order wasterminated on February 3, 2022, with the justification that:

 

The followingactions have been taken to correct the following conditions:

1. New door strikerand door seals have been installed.

2. All of the boltshave been installed and is now securely in place.

3. New final drivehas been installed.

4. New hoses andO-rings have been installed.

5. A new seat hasbeen installed.

 

*Id*. at 6.

 

**Despite generous forbearance onthe part of the MSHA inspector, after issuing multiple continuances allowingadditional time to correct the five separate defects found on a Caterpillar dozer,the inspector was compelled to issue a 104(b) order after three weekshad passed without *all*the defects having been corrected. As with thetwo previous orders discussed above, the vehicle continued to be operated inthe Grapevine North Pit Area. For one keeping score, that means *three*piecesof equipment with defects were all operating in the same area. The Ordercontradicts claims that the equipment had been taken out of service until therepairs were completed.**

 

**Citation No. 9563141**

Citation No. 9563141 was issued on January 11, 2022,for a violation of 30 C.F.R. § 77.1605(d), *supra*. The citation read:

 

The followingconditions existed on the 785D Caterpillar Haulage Truck Co. No. RT111:

1. The left andright side front signal/marker lights are not functioning when tested.

2. The left sidehigh beam light is not functioning when tested.

3. The left and rightside rear signal lights are not functioning when tested.

4. The left andright side brake lights are not functioning when tested.

5. The horn was notfunctioning when tested.

This truck was beingoperated in the Mill Seat Pit Area (Alma). Thistruck operates before and after daylight hours. Mobile equipment shall beprovided with audible warning devices,

Lights shall beprovided on both ends when required. These conditions have been recorded on thePre-Operational Examinations and reported to the mine operator.

Standard 77.1605(d)was cited 18 times in two years at mine 4608930 (18 to the operator, 0 to acontractor).

 

Petition at 29.

 

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“high.” *Id*. The citation was continued on January 18, 2022, with thejustification that:

 

 

Repairs are stillbeing conduct at this time. Some of the repairs have been completed. Repairwork has been hampered by parts availability and limited personnel to completethe repairs. The mine operator has removed the equipment from service untilthese repairs can be completed.

 

*Id*. at30. 

 

The citation wascontinued again on January 24, 2022, with the justification that:

 

Repairs are stillbeing conduct at this time. Some of the repairs have been completed. Repairwork has been hampered by parts availability and limited personnel to completethe repairs. The mine operator has removed the equipment from service untilthese repairs can be completed. 

 

*Id*. at31. 

 

**Section 104(b) Order No.****9563182** was issued on February 1, 2022, in associationwith Citation No. 9563141. The order read:

 

A reasonable effortwas not made by the mine operator to insure that all conditions were correctedon the 785D Caterpillar Haulage Truck Co. No. RT111. 5of the conditions have not been corrected in a reasonable amount of time basedon the conditions that existed

Standard 77.1605(d)was cited 21 times in two years at mine 4608930 (21 to the operator, 0 to acontractor).

 

104(b) OrderAddendum at 15. The citation was terminated on February 8, 2022, with the justificationthat:

 

The followingactions have been taken to correct the conditions:

1. Repaired thewiring to the lights.

2. Repaired thewiring to the lights.

3. Repaired thewiring to the lights.

4. Repaired thewiring to the lights.

5. Installed a newsteering column and hooked up horn to new column.

 

*Id*. at16.

 

The Secretarymoves to keep the citation as issued but reduces the penalty, offering thefollowing in support:

 

Citation #9563141will remain as issued with a reduction in penalty.

The Respondentcontends that the gravity of the citation was overevaluated and should not havebeen issued as “fatal”. Respondent would argue at hearing that the citedconditions would not cause fatal injuries to miners. Respondent contends thatthe cited truck still had numerous lights on both ends to indicate the locationat low light. The few sporadic lights that were inoperative would not hinderthe safe operations while in production. Secretary recognizes that the ALJ may 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 reduce the penalty for Citation #9563141 from $11,149 to $9,918,and the Respondent has agreed to pay the reduced penalty. 

 

Mot. to ApproveSettlement at 3-4.

** **

**Citation No. 9563141, which involves an11% (eleven percent) reduction in the penalty, is one of the internallyinconsistent settlements about which the Secretary frequently partakes. Standingby the inspector’s evaluation is the easy part of the arrangement because theissuing inspector found five, yes five, defects with the mine’s 785DCaterpillar Haulage Truck Co. No. RT111, four of them related to inoperativelights and one for a horn that could not sound.  Worse, if possible, *thedefects were all recorded on the pre-op exams, but thereafter still ignored bythe operator*. While one might guess that with all those defects and theoperator not acting upon them, though informed of them, the Secretary wouldadhere to the proposed penalty, that guess would be wrong, as the Secretaryagreed to knock 11% off the regularly assessed penalty. Thus,in the face of the 104(b) order the Secretary did want to be disclosed, theSecretary, by the 11% reduction,  in effect monetarily awarded the 10% goodfaith reduction, which the initial assessment had declined.**

**On thisrecord, which is all that the Court presently is permitted to have before it,there is no way that the Court could find merit, as the Secretary suggests, inthe arguments presented.  In fact, the Secretary finds no merit either, as itdoes not alter the inspector’s evaluation.  The inspector’s (b) order relatedthat *five* of the conditions have not been corrected in a reasonableamount of time based on the conditions that existed. As with anearlier-discussed order, 20 days had elapsed since the citation was issued,with the result that on the 21st day, the (b) order was issued. Further,the only claim is that a fatality would not result, but support for that claimis not presented and the Respondent does not state the lesser degree of injuryto be expected. No mention is made about the non-functioning horn, which itselfis a significant safety defect.**

 

 

**Citation No. 9563142**

 

Citation No. 9563142 was issued on January 11, 2022,for a violation of 30 C.F.R. §77.1606(c), *supra*.

 

 

 

            The citation read:

 

The followingdefects affecting safety existed on the 785D Caterpillar Haulage Truck Co. No.RT111:

1. Right front strutis leaking oil.

2. Right rear strutis leaking oil.

3. Oil is leakingfrom the right rear inside wheel area.

4. Oil is leakingfrom the right rear outside wheel area.

5. Oil is leakingfrom the left rear inside wheel area.

6. Excessive slackexisted in the rear stabilizer bar (dogbone).

7. Excessive slackexisted in the center arm pin.

8. The left frontstrut is leaking oil.

9. Oil is leakingfrom the right front brake caliber area.

10. Oil is leakingexcessively from the steering oil tank onto the deck and down onto the rightside of the engine compartment area.

11. Oil is leakingexcessively from the area located behind the hydraulic tank.

12. Three gussetslocated on the right side of the truck was cracked and separated.

13. The right rearinside tire has excessive damage to the tire.

This truck was beingoperated in the Mill Seat Pit Area (Alma). Defects affecting safety shall becorrected before the equipment is used.

 

Standard 77.1606(c)was cited 46 times in two years at mine 4608930 (46 to the operator, 0 to acontractor).

 

            Petition at 32-33.

 

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 32. The violation was not found to be significant andsubstantial. *Id*. Negligence was found to be “moderate.” *Id*. Thecitation was continued on January 18, 2022, with the justification that:

 

Repairs are stillbeing conduct at this time. Some of the repairs have been completed. Repairwork has been hampered by parts availability and limited personnel to completethe repairs. The mine operator has removed the equipment from service untilthese repairs can be completed. 

 

*Id*. at34. 

 

The citation wascontinued again on January 24, 2022, with the justification that:

 

Repairs are stillbeing conduct at this time. Some of the repairs have been completed. Repairwork has been hampered by parts availability and limited personnel to completethe repairs. The mine operator has removed the equipment from service untilthese repairs can be completed.

 

*Id*. at35. 

** **

**Section 104(b) Order No**. **9563181** was issued on February 1, 2022, in associationwith Citation No. 9563142. 

 

The order read:

 

A reasonable effortwas not made by the mine operator to insure that all conditions were correctedon the 785D Caterpillar Haulage Truck Co. No. RT111. 4 of the conditions havenot been corrected in a reasonable amount of time based on the conditions thatexisted

Standard 77.1606(c)was cited 60 times in two years at mine 4608930 (60 to the operator, 0 to acontractor).

 

104(b) Order Addendumat 13. The order was terminated on February 8, 2022, with the justificationthat:

 

The followingactions have been taken to correct the conditions:

1. Installed a newstrut.

2. Installed a newstrut.

3. Installed newcooler seals.

4. Installed newwheel seals on axle cover.

5. Installed newcooler seals.

6. Installed newbearings.

7. Installed newbearing and pin.

8. Installed a newseal.

9. Installed newcooler seals.

10. Resealed thesteering tank.

11. Resealed theback of the hydraulic tank.

12. Welded thegussets up securely.

13. Installed a newtire.

 

*Id*. at 14.

****

**Breakingprevious records for the citations in this docket, for this citation 13(thirteen) separate defects were identified, none of which, in the Court’sestimation, could be viewed as inconsequential. Part of what could only bedescribed as a pattern for these citations, the (b) order was issued after some20 days had elapsed with the order being issued on the 21st day. Threeweeks is, undeniably, a long period of time for the repairs to have been accomplished.The inspector’s order stated that a reasonable effort had not been made tocorrect all of the cited conditions within a reasonable amount of time.****Havinggained the operator’s attention through the (b) order, the defects were thenall corrected a week later.**

** **

**Citation No. 9563143**

 

Citation No. 9563143 was issued on January 11, 2022,for a violation of 30 C.F.R. § 77.1606(c), *supra*.

 

            The citation stated:

 

The followingdefects affecting safety existed on the 785C Caterpillar Haulage Truck Co. No. RT269:

1. The mud flaplocated underneath the operators cab is bent down, allowing mud to get on the

drivers side rearview mirror and onto the window glass of the drivers side door.

2. The truck frameis cracked across the bottom and back side of the frame. The crack is locatedon the rear of the truck above where the stabilizer bar (dogbane) is located.

3. The right rearstrut is leaking oil.

4. The right siderear wheel is leaking oil on the inside area of the wheel.

5. The left siderear wheel is leaking oil on the inside area of the wheel.

6. Oil is leakingfrom the steering oil tank area which is located on the top deck above theengine compartment. The oil is leaking down onto the right side of the enginecompartment area.

7. Excessive slackexisted in the right side steering jack inside ball stud. The slack is visiblewhen the truck is steered in either direction.

8. Excessive slackexisted in the left side steering jack inside ball stud. The slack is

visible when thetruck is steered in either direction.

9. The front brakecanister is over stroked. There is no warning alarm or warning light on insidethe operators cab.

10. The handraillocated on the front bumper to the right side step is bent and missing a bolt.

11. The hood isbroke near the offside door to the operators cab. This hood is also used as awalkway (deck) to access the offside door to the operators cab.

12. The fuel gaugelocated inside the operators cab was not functioning when tested.

13. Paper towels arewrapped around the door striker to the drivers side door to the

operators cab.

14. Paper towels areinstalled around the top corner to the drivers side door to the

operators cab.

This truck was beingoperated in the Mill Seat Pit Area (Alma). Defects affecting safety shall becorrected before the equipment tis used.

 

Standard 77.1606(c)was cited 46 times in two years at mine 4608930 (46 to the operator, 0 to acontractor).

 

Petition at36-37.

 

For gravity,likelihood of injury was found to be “unlikely,” and injury could reasonablyresult in “lost workdays or restricted duty,” affecting one person. *Id*.at 36. The violation was found not to be significant and substantial. *Id*.Negligence was found to be “moderate.” *Id*. 

 

The citation wascontinued on January 18, 2022, with the justification that:

 

Repairs are stillbeing conduct at this time. Some of the repairs have been completed. Repairwork has been hampered by parts availability and limited personnel to completethe repairs. The mine operator has removed the equipment from service untilthese repairs can be completed.

 

*Id*. at 38. The citation was continued againon January 24, 2022, with the same justification. *Id*. at 39. 

 

**Section 104 (b) Order No**. **9563178**was issued on February 1, 2022, in association with Citation No. 9563143. 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. RT269. 6 conditions have not beencorrected in a reasonable amount of time based on the conditions that existed.

Standard 77.1606(c)was cited 57 times in two years at mine 4608930 (57 to the operator, 0 to acontractor).

 

104(b) Order Addendum at 7. Theorder was terminated on February 10, 2022, with the justification that “Alldefects affecting safety, on the 785C Caterpillar Haulage Truck, Co. No. RT269,that is operated on the Mill Seat Pit Area (Alma), have been corrected by aqualified person.” *Id*. at 8.

 

**The previous record for multiple defects, as justdiscussed, did not last long, as Citation No. 9563143 recorded 14 (fourteen)defects on yet another Caterpillar haulage truck. As with the other 104(a)citations, some three weeks passed before the inspector refused to grantadditional continuations, issuing a (b) order. In a similar time frame, ninedays later, the defects were finally corrected.**

** **

 

**Citation No. 9563146**

 

Citation No. 9563146 was issued on January 12, 2022,for a violation of 30 C.F.R. § 77.1606(c), *supra*. 

 

 

 

            The citation stated:

 

The followingdefects affecting safety existed on the 785D Caterpillar Haulage Truck Co. No. RT112:

1. An excessive oilleak existed on a hose located on the right front area of the truck. Oil wasspraying out the hose.

2. An excessive oilleak existed in the area behind the hydraulic tank area. A steady streams ofoil was coming from this area.

3. Oil was leakingfrom the right rear wheel. The inside area of the wheel was covered in oil andrunning down the sidewall of the tire.

4. The mud flap ismissing from underneath the drivers side of the operators cab. The mirror andwindow glass of the drivers side door was covered in mud.

5. Oil was leakingfrom the filter area of the steering oil tank and running down onto the rightside of the engine compartment.

6. Left rear braketemperature error indicator is coming on inside the operator's cab.

7. The warning lightlocated next to the digital display is taped over.

8. The actionwarning light located on the dash board is staying on at all times.

9. Excessive slackexisted on the right side steering jack inside ball stud. This slack wasvisible when the truck was steered in either direction.

10. The right sidefender is damaged where the front head lights are located causing the lights tonot face forwards completely.

This truck was beingoperated in the Mill Seat Pit Area (Alma). Defects affecting safety shall becorrected before the equipment is used.

 

Standard 77.1606(c)was cited 48 times in two years at mine 4608930 (48 to the operator, 0 to acontractor).

 

Petition at44-45.

 

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 44. The violation was not found to be significant andsubstantial. *Id*. Negligence was found to be “moderate.” *Id*. Thecitation was continued on January 18, 2022, with the justification that:

 

Repairs are stillbeing conduct at this time. Some of the repairs have been completed. Repairwork has been hampered by parts availability and limited personnel to completethe repairs. The mine operator has removed the equipment from service untilthese repairs can be completed.

 

*Id*. at46. The citation was continued again on January 24, 2022, with thejustification that: 

 

Repairs are stillbeing conduct at this time. Repairs to items 1, 2, 4, 6, 7, 9 and 10 have beencompleted. Repair work has been hampered by parts availability and limitedpersonnel to complete the repairs. The mine operator has removed the equipmentfrom service until these repairs can be completed.

 

*Id*. at47. 

 

**Section 104(b) Order No**. **9563180** was issued on February 1, 2022, in associationwith Citation No. 9563146. 

 

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. RT112. 1 of the conditions hasnot been corrected in a reasonable amount of time based on the conditions thatexisted.

Standard 77.1606(c)was cited 59 times in two years at mine 4608930 (59 to the operator, 0 to acontractor).

 

104(b) Order Addendum at 11. Theorder was terminated on February 2, 2022, with the justification that:

 

The followingactions have been taken to correct the following conditions:

1. A new metal tubeand O-rings have been installed. Steamed cleaned the area.

2. Resealed thehydraulic tank, installed several hoses and O-rings. Steamed cleaned the area.

3. Resealed wheelunit and coolant brake tube. Also installed new wheel group. Steamed cleanedthe area.

4. Installed a newmud flap. Cleaned the mirror and window glass.

5. Resealed thefilter on the tank. Steamed cleaned the area.

6. A new brakesensor has been installed.

7. Repaired thewiring and downloaded the system. Also removed the tape.

8. Repaired thewiring and downloaded the system.

9. Installed a newball stud.

10. Repaired thefender by bending the fender back into place.

 

*Id*. at 12.

 

**With Citation No. 9563146, we return to multipledefects on another vehicle, this time 10 (ten) defects on Caterpillar haulage truck.Among the 10 were four instances of excessive oil leaks. Several of the otherdefects were significant matters such as: the left rear brake temperature errorindicator is coming on inside the operator's cab; the warning light locatednext to the digital display was taped over; the action warning light located onthe dashboard was staying on at all times; and there was excessive slackpresent on the right side steering jack inside ball stud.  It cannot be deniedthat these constituted a significant number of defects.**The truck was beingoperated in the Mill Seat Pit area at the time of 104(a) citation’s issuance.  Withthe passage of some 18 (eighteen) days and matters still not all corrected, theinspector understandably issued a (b) order.

** **

** **

**Further Analysis of the hidden(b) orders.**

** **

**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.**

** **

As discussedabove, the 7 (seven) section 104(a) citations and the associated 104(b) orderseach reflect important contextual information about these, now-admittedviolations.    In particular, the 104(b) orders each reflect that the mineoperator took an undue period of time in correcting the numerous andconsequential violations, so much so that the issuing inspector understandablyhad no reasonable option but to issue the orders. It is noteworthy that, forseveral of the orders, the inspector noted that the equipment continued to beoperated in its defective condition. 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. 

 

It is thisCourt’s position that once a matter is contested, it is before the Commission. Thatmeans *all of it*, not selected portions of enforcement actions ensuingafter issuance of citations. Full stop.

 

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 for the settlementmatters not involving the Secretary’s failure to supply the Section 104(b)orders**

** **

Two citations in the motion involve penaltyreductions with modifications to the issuing inspector’s evaluations. They arediscussed here.

** **

**Citation No. 9563144****PenaltyReduction of 80%**

 

Citation No.9563144 was issued as a 104(a) citation on January 11, 2022, for a violation of30 C.F.R. § 77.1001. Titled “Stripping; loose material,” this standardspecifies that “Loose hazardous material shall be stripped for a safe distancefrom the top of pit or highwalls, and the loose unconsolidated material shallbe sloped to the angle of repose, or barriers, baffle boards, screens, or otherdevices be provided that afford equivalent protection.” 30 C.F.R.§ 77.1001.

 

            The citation read:

 

The spoilbanklocated in the Grapevine North Pit Area (Alma) was not stripped for a safedistance from the top of the pit. The spoil bank was not sloped to the angle ofrepose. The toe of the spoilbank has been dug out. The spoilbank is not at theangle of repose in the pit and is 30 to 35 feet high. A coal loader wasremoving coal along the base of the spoilbank. The area along the toe of thespoil bank was not bermed off to prevent unauthorized access.

This conditionexposes the person working underneath the spoilbank to the hazards thatexisted. It is reasoanbly likey of this condition continues to exist anaccident will occur.

Loose hazardousmaterial shall be stripped for a safe distance from the top of pit or

highwalls, and theloose unconsolidated material shall be sloped to the angle of repose, orbarriers, baffle boards, screens, or other devices be provided that affordequivalent protection

Standard 77.1001 wascited 1 time in two years at mine 4608930 (1 to the operator, 0 to acontractor).

 

            Petition at 40.

 

            For gravity,likelihood of injury was found to be “reasonably likely,” and injury couldreasonably be expected to result in “lost workdays or restricted duty,”affecting one person. *Id*. The violation was found to be significant andsubstantial. *Id*. Negligence was found to be “moderate.” *Id*. Thecitation was terminated on January 13, 2022, with the justification that“[m]aterial has been dumped back into the pit to correct the hazardousspoilbank. The spoilbank is now at the angle of repose.” *Id*. at 41.

 

 

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

 

Citation #9563144 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 spoilbank was compacted in the cited area because of aprevious haulroad overhead. Respondent further contends that the highwall didnot show any indications of adverse conditions or failure at the present timeand it was not currently raining.

 

The Secretary has exercised his discretion to modify thesignificant and substantial designation associated with citation #9563144. 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 #9563144 from $1,471 to $296, and theRespondent has agreed to pay the reduced penalty.

 

Motion at 4.

 

            ForCitation No. 9563144, involving a now-admitted violation of 30 C.F.R. §77.1001 the Secretary’s Motion seeks to modify thelikelihood of the injury from the inspector’s designation of ‘reasonablylikely’ to ‘unlikely.’ The standard requires that loose hazardousmaterial shall be stripped for a safe distance from the top of pit orhighwalls, and the loose unconsolidated material shall be sloped to the angle ofrepose. Neither of these methods of compliance were present. To the contrary,and not contested, the inspector found that the spoil bank located in theGrapevine North Pit Area was not stripped for a safe distance from the top ofthe pit, nor was it sloped to the angle of repose. Aggravating matters, the toeof the spoil bank has been dug out and was not bermed off to preventunauthorized access. Further, a coal loader was removing coal along the base ofthe spoilbank.

 

Addressing the basis for the unlikely designation, theRespondent contends that the spoil bank was compacted in the cited area becauseof a previous haul road overhead and that the highwall did not show anyindications of adverse conditions or failure at the present time and it was notcurrently raining. None of these claimed justifications support the unlikelydesignation. Instead, they are of the alternative safety conditions which thefederal courts of appeals have rejected when analyzing the significant andsubstantial designation.[3] This is especially the case for the claim that adverseconditions or failure *at the present time* and that it *was notcurrently raining*. The Commission has made it clear that analysis of thelikelihood is measured by continued normal mining operations. 

 

In the face of all this, theSecretary has agreed to change the inspector’s evaluation of the gravity tounlikely, and by that change, the violation becomes redesignated asnon-S&S. No word whether the Secretary sought input from the issuinginspector about the legitimacy of these changes. As for the S&S change tonon-S&S, it is the Secretary’s position that it is justified simply becausehe can do so, with no rationale needed, as if it can be made apart from anygravity modification.  The Court does not agree. In making the claim that the Secretary has independent discretion to remove theinspector’s ‘significant and substantial’ designation, the Motion asserts suchdiscretion, citing inapplicable Commission decisions. This is incorrect, theremoval of the ‘significant and substantial’ designation comes about only byvirtue of the redesignation of the likelihood of occurrence, not apart fromthat.

 

To support the change that theinjury is unlikely to occur, the Respondent asserts that the spoil bank wascompacted in the cited area because of a previous haul road overhead and thatthe highwall did not show any indications of adverse conditions or failure *atthe present time*. With no embarrassment, Respondent also adds that *itwas not currently raining*. None of the assertions put forward by theRespondent speak to likelihood. The standard does not offer passes when noadverse conditions or failure exist *at the present time*, nor is there a ‘no*current*rain’ exception. The Secretary has overlooked that the test forevaluation is to assume ‘continued normal mining operations.’*U.S. Steel Mining Co., Inc.*, 6 FMSHRC1573, 1574 (July 1984).

 

However, given the Commission’s test for ajudge’s review of settlement motions and the Court’s understanding of the applicationof that test, this motion, as with virtually all such motions, passes muster. Therefore,the Court leaves it to the Commission if it determines that the Courtmisapprehends the review test in this instance. 

. 

**Citation No.****9563152Penalty Reduction of 80%**

** **

            Citation No. 9563152was issued on January 19, 2022, as a 104(a) citation, for a violation of 30C.F.R. § 77.1004(b). Titled “Ground control; inspection and maintenance;general,” this standard specifies that “[o]verhanging highwalls and banks shallbe taken down and other unsafe ground conditions shall be corrected promptly,or the area shall be posted.” 30 C.F.R. § 77.1004(b).

 

The citationread:

 

The mine operatordrilled 90 foot pre-line holes and blasted these holes in the Grapevine NorthPit Area. The mine operator then stepped out away from the pre-line aconsiderable distance and drilled a 30 foot break down shot. *After thebreakdown shot was removed this created another highwall that was in front ofthe pre-line that was already shot creating a false highwall. The mine operatorwas in the process of drilling another 30 foot breakdown next to the area thatthe false highwall existed.* This condition creates an unsafe groundcondition. Overhanging highwalls and banks shall be taken down and other unsafeground conditions shall be corrected promptly, or the area shall be posted. Itis reasonably likely if these conditions continue to exist an accident willoccur.

 

            Petition at 69(emphasis added).

 

Forgravity, likelihood of injury was found to be “reasonably likely,” and injurycould reasonably be 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*. The citation was continued on January24, 2022, with the justification that “A shot has been put off and thatmaterial has been ramped back up towards the upper bench. Another shot is beingblasted

today to have more material to complete[] the ramp to beable to safely access the upper bench to start drilling. More time is needed toconstruct the ramp, drill the shot and blast.” *Id*. at 70. The citationwas terminated on February 1, 2022, with the justification that “The highwallhas been scotched by pushing material back up along the highwall. A road hasalso been completed to access the upper bench. Drilling has already commencedon the upper bench to shoot back to the existing pre-lined highwall. The mineoperator will not remove the material that is scotching the highwall until theupper bench has been shot back to the existing pre-lined highwall.” *Id*.at 71.

 

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

 

Citation #9563152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top safety bench measured in excess of60feet. The highwall only measured 30 feet, so therefore it is highlyunlikely that a highwall failure would occur from thisground controlissue. The Secretary hasexercised his discretion to modify thesignificantand substantial designation associated with citation#9563152. The Secretary may exercise that discretion aspart of asettlement. *Am. Aggregatesof Michigan, Inc.*, 42 FMSHRC 570, 576-79 (Aug. 2020) (citing *MechanicsvilleConcrete, Inc.*, 18 FMSHRC877, 879-80 (June 1996)). The Secretary recognizes that theALJ mightfind merit in the facts andarguments presented by the Respondent andinlight of the contested evidence and given the uncertainties oflitigation, the Secretary has agreed to modify the gravityfrom“reasonably likely” to “unlikely” anddeleting the “S&S” finding, andreduce thepenalty for citation #9563152 from $4,884 to $987, and the Respondent has agreedto pay the reduced penalty.

 

Motion at 4-5.

 

            Here, for this second ground control hazard, theRespondent asserts only that the top safety bench measured in excess of 60 feetwhile the highwall measured 30 feet. From this, the Respondent contends that itis highly unlikely that a highwall failure would occur from the admitted groundcontrol issue. There is no explanation how those two distances correlate tosupport the assertion, and the Court, under current Commission decisional law,is precluded from making reasonable inquiries about this. Further, neither theRespondent nor the Secretary address the inspector’s remark that after thebreakdown shot was removed that act created another highwall that was in frontof the pre-line that was already shot, creating a false highwall, nor do theyspeak to the inspector’s uncontested statement that the mine operator was inthe process of drilling another 30-foot breakdown next to the area that thefalse highwall existed. 

 

Of a severity ona par with the other ground support violation just described, this time thenow-admitted violation involved the requirement for overhanging highwalls andbanks to be taken down and other unsafe ground conditions shall be correctedpromptly, or the area shall be posted. None of those prophylactic steps weretaken.

 

 

The Secretarydoes not inform whether he consulted with the issuing inspector about theoperator’s brief assertion to support the unlikely characterization based onthe claim that there was a top safety bench in excess of 60 feet and that thehighwall was only 30 feet. The inspector of course is the only person for theSecretary who had a “eyes on” to view the situation. Further, to the Court, a30-foot high wall is not negligible. But, that is where things are – the Courtis not permitted to make inquiries about these issues, and so, absentintervention by the Commission, the motion is to be approved.

 

These seriousquestions by the Court do not operate to reject the Motion as the Commission’stest for approval of such motions is satisfied.However, given the Commission’s test for a judge’s review of settlementmotions and the Court’s understanding of the application of that test, thismotion, as with virtually all such motions, passes muster. Therefore, the Courtagain leaves it to the Commission if it determines that the Court misapprehendsthe review test. 

 

**Reasonable Inquiry is notPermitted**

 

Despite the Court’s analyses and expressedconcerns for Citation Nos. 9563144 and 9563152, 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.[4]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.[5]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 **$23,365.00** within 30 days of this decision.[6]

 

 

 

 

 

/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originally consisted of 33 citations/orders, until 16 of the citations/orderswere reallocated into WEVA 2022-0428. Order for Docket Reallocation, June 29,2022.

[2]Citation Nos. 9563139, 9563140, 9563144, 9563145, 9563149, 9563150, 9563151,9563152, 9563153, and 9563154 were issued as 104(a) citations, and received a10% penalty reduction for good faith. All citations and orders in this docketwere regularly assessed.

 

[3]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. 

 

[4]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.

 

[5]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.*Motion at 3 (emphasisadded). Such boilerplate claims are almost always hollow, in view of the actualmodifications and penalty reductions that makeup these motions.

 

6 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.