**FEDERAL MINESAFETY AND HEALTH REVIEW COMMISSION**

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

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

** **

|  

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

   Petitioner

 

v. 

 

 APPALACHIAN RESOURCE WEST VIRGINIA, LLC,

   Respondent       |  

 

 

  |  

  |  

CIVIL PENALTY PROCEEDING

 

Docket No. WEVA 2022-0428

A.C. No. 46-08930-551112

 

 

 

 

Mine: Grapevine South Surface Mine

  |
|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------------------------------|----------------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                                                                                                                                                                                                                |                           |           |                                                                                                                                                                      |

 

**ORDER CERTIFYING CASE FOR INTERLOCUTORY REVIEW**

 

            This case is beforethe Court on a Petition for the Assessment of a Civil Penalty under Section105(d) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30U.S.C. § 815(d), filed May 31, 2022, and the Secretary of Labor’s Motionto Approve Settlement, filed October 14, 2022. The Secretary has refused toprovide the 104(b) order associated with a 104(a) citation in this docket. Theabsence of the associated 104(b) order frustrates the Court’s ability to faithfullyreview the record and properly evaluate the proposed settlement. Further, theidea that the Secretary may unilaterally decide to secrete public records fromthe official file for a Petition for the Assessment of Civil Penalty he filedis inimical to the Congressional structure and purpose of the Mine Act. 

 

Accordingly, forthe reasons which follow, the Court **CERTIFIES** under CommissionProcedural Rule 76, 29 C.F.R. § 2700.76, that this interlocutory rulinginvolves a controlling question of law – whether the Secretary is obligated,upon a judge’s request, to supply a 104(b) order associated with a 104(a)citation in a docket before the judge on a Motion to Approve Settlement – forwhich, in the Court’s opinion, immediate review will materially advance the finaldisposition of the proceeding.

 

**Background**

** **

****This docketwas originally part of a larger docket, Docket No. WEVA 2022-0301, whichconsisted of 33 citations. By virtue of an Order for docket reallocation, datedJune 29, 2022, this new docket was created. Order for Docket Reallocation at 1.It consists of 16 citations moved from that original docket. Uponexamination of the motion for approval ofsettlement and Exhibit A, the Court discovered that the record was incomplete forone of the citations, Citation No. 9563157, in that a section 104(b) order issued in connection withthat citation was absent.  The Citation involved a now-admitted violation of 30C.F.R. § 77.1606(c). That standard directs that equipment defects affectingsafety shall be corrected before the equipment is used. It is no exaggerationto say that the citation was a doozy. Issued January 18, 2022, it reported thefollowing 10 equipment defects affecting safety: 

 

Thecitation states:

 

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

1. The left rearstrut is bottoming out.

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

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

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

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

6. The left sidefront strut is bottoming out.

7. The right frontstrut is leaking oil.

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

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

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

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

 

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

 

Pet.for a Civil Penalty at 66-67.

 

Forgravity, likelihood of injury was found to be “unlikely,” but the injury couldreasonably be expected to result in “lost workdays or restricted duty”affecting one person. *Id*. at 66. The violation was not found to besignificant and substantial.  Understandably, the negligence was found to be“high.” *Id*. at 68. 

 

Nearlya week after issuance of the citation, on January 24, 2022, the inspectorissued a “Subsequent Action,” in which he informed that the “[r]epair work hasbeen hampered by limited personnel to complete the repairs. The mine operatorhas removed the equipment from service until these repairs can be completed.”Citation No. 9563157-01, Petition at 68. The inspector extended the date forcorrecting the multiple defects until January 28, 2022. 

Afterthat, the file, in a manner of speaking, went dark. Exhibit A, however, givesaway that there was subsequent action in that a section 104(b) order wasissued.  

 

TheSecretary moved to keep the citation as issued, with no reduction in penalty.Mot. to Approve Settlement at 3. The penalty was assessed at $4,624.00.

 

In light ofthe missing 104(b) document(s), on November 9, 2022, the Court e-mailed theparties, requesting the missing information pertaining to Citation No. 9563157. Though the subject of a related Ordercertifying for interlocutory review arising out of the parent document, WEVA2022-0301, also issued today, it is worth noting that there are seven (7)missing (b) orders from that document. To be clear, as originally constructed,for the 33 citations initially constituting WEVA 2022-0301, there were eight(8) instances in total where the (b) orders are absent. This Order speakssolely to the missing document(s) for Citation No. 9563157, which is part ofWEVA 2022-0428. 

 

On Tuesday, November 15th,the Secretary’s non-attorney representative, conference and litigationrepresentative David Trent, responded, speaking to the missing documents from *both*dockets:

 

For the violationslisted [by] Judge Moran request[ing] the terminations, no penalty is beingcompromised except for Citation No. 9563141. Therefore, the Secretary will notprovide the terminations for these violations. For Citation No. 9563141 thereis no termination to provide for this violation.[1]

 

E-mail from CLR Trent to the Court,November 15, 2022.

 

On the same day as Mr. Trent’s response, Counsel forthe Respondent, Attorney K. Brad Oakley, taking a cooperative approach, emailedthe Court, responding that he could only locate a termination sheet for CitationNo. 9563139, which termination sheet he attached to his email. He added thatthe violation was terminated upon repairs being made to lights on a dozer andthat there was no (b) order associated with it. E-mail from Attorney Oakley tothe Court, November 15, 2022.

 However, thatcitation is not part of this docket, Docket No. WEVA 2022-0428. Rather, it is partof Docket No. WEVA 2022-0301 which is the subject of the Court’s separatecertification for interlocutory review, also being issued today. 

 

Attorney Oakleyalso informed in the same email that he had not been able to locate thetermination sheets in the package of citations that his client provided to him,nor in the petition filed by Mr. Trent and that he believed that all of theremaining citations have 104(b) orders associated with them. For that reason heopined that it was possible that MSHA did not issue terminations for theunderlying citations. *Id.*  To the Court, that makes sense as the (b)orders would supersede the (a) citations.

 

On November 22,2022, the Court e-mailed the parties again, advising, in relevant part, thatfor Docket No. WEVA 2022-0428, the documents related to Citation No. 9563157continued to be missing the section 104(b) order. Subsequently, on November 28,2022, the Court updated the status of information missing from that docket, advisingthat a new deficiency had been discovered, namely that Citation No. 9563158 wasmissing entirely from the Petition. Accordingly, the Court advised that “[i]naddition to supplying the court with copies of the missing 104(b) orders, aspreviously requested, the Court also requests a copy of Citation No. 9563158.”E-mail by the Court to the Parties (November 28, 2022). Thereafter, also onNovember 28, 2022, the CLR responded via e-mail, providing the missingcitation, while reiterating that the Secretary would not provide the missingtermination sheets. E-mail from CLR Trent to the Court (November 28, 2022). 

 

**Analysis**

** **

As explained below, the Courtbelieves that this matter pertains to a bedrock principle of the Mine Act andthe Commission’s role in protecting the safety and health of miners. Further,in no way does it conflict with the Commission’s interpretationof its review responsibilities under its decisions in *The AmericanCoal Co.*, 40 FMSHRC 983 (Aug. 2018) (“*AmCoal*”) and *RockwellMining, LLC*, 40 FMSHRC 994 (Aug. 2018).

 

Simply put, the question is whetherthe Secretary of Labor has the authority to deprive the Commission, miners andthe public from seeing section 104(b) orders issued in connection withcitations. The Secretary’s legal position is that if a citation is paid in fulland without any modifications, it may withhold such orders from theCommission’s eyes and everyone else.   

 

To the Court at least, such aposition is inimical to the unique statutory provision created by Congressunder section 110(k) of the Mine Act. As the Court views the Secretary’sposture, it may be compared to a police officer telling a curious onlooker atthe scene of a violation to ‘move along, nothing to see here.’ The problem withsuch an imperious attitude is that it is the Commission, acting through its‘front line oversight’ by the Court of the settlement process, that makes it farmore than an onlooker. Rather, under Congressional mandate, once a petition forthe assessment of a civil penalty has been filed, it is not the Secretary butthe Commission which occupies the role as the overseer of the settlementprocess. 

 

One would think that the Secretary,who has the important initial role in protecting the safety and health ofminers, would be on the same page as this Court on the issue of disclosure ofthe record of citations and any orders which may ensue from them. However, regrettablyand inexplicably, that is not the case. 

As this Court remarked in *PerryCounty Resources,*44 FMSHRC 501 (June 2022), a matter which also involvedthe Secretary, again acting through a non-attorney representative, refusing toprovide a section 104(b) order issued following a section 104(a) citation.  Inthat case the Court expressed that it did 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 [for a citation which] ispart of this docket . . . 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 of all, 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 added)*.*

* *

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).

 

The Secretary, seeking what appearsto be more territorial gain in the Commission’s presently limited review rolefor settlement motions, now is attempting to further limit that role byforeclosing the Commission’s ability to even see relevant documents associatedwith citations, in this case (b) orders. The public purpose behind theSecretary’s decision to prevent the Commission, miners, and the public fromseeing these relevant documents is unfathomable. 

 

Given the Secretary’s obligations, as stated above, when104(b) orders have been issued his refusal to disclose them creates theappearance of something being askew. It is noteworthy that the Secretary is notasserting that he does not have the documents. Instead, the Secretary iscontending that the Commission may not view them. To the Court, this is aposition at odds with the Commission’s unique gatekeeper role per section110(k) of the Mine Act. 

 

For the reasonsstated above, the Court certifies upon its own motion that this interlocutoryruling involves a controlling question of law for which in the Court’s opinion,immediate review will materially advance the final disposition of theproceeding, 

 

 

 

 

 

/s/William B. Moran

William B. Moran

Administrative Law Judge

 

 

 

 

Distribution:

 

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

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

 

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

Lexington, KY 40507  kboakley@jacksonkelly.com 

** **

----

[1]Mr. Trentwas referring to a citation found in the original docket and*not*reallocated to this docket, WEVA 2022-0428. No explanation was provided for thelack of any termination paper. It will be mentioned in the Court’s companion certificationfor interlocutory review regarding Docket No. WEVA 2022-0301. The settlementfor this citation represents another incongruity with the Secretary’s position,as he stands by the inspector’s evaluation in all aspects, yet accedes to apenalty reduction in the face of five (5) independent defects on a haulagetruck. The justification presented by the mine operator is that there wereother lights working on the truck. All lights, however, are not the same. Here,among the defective lights, brake lights weren’t working and, an independentconcern unrelated to lights, the truck’s horn was also not working.