**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,                                                  CIVILPENALTY PROCEEDING:

  MINE SAFETYAND HEALTH                                        

  ADMINISTRATION(MSHA),                                          Docket No. WEVA 2023-0214

                    Petitioner                                                            A.C.No. 46-01437-571004

            v.                                                              

marshall county coal,                                           Mine:Marshall County Mine

  RESOURCES,INC.,

                    Respondent

 

**DECISION APPROVING SETTLEMENT**

 

 

Before: JudgeMoran

 

Thiscase is before the Court upon a Petition for Assessment of Civil penalty undersection 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §815(d). The Conference and Litigation Representative (“CLR”), who is not anattorney,[1] has filed amotion to approve settlement.  A **fifty-six percent**reduction in thepenalty from **$8,239.00** to **$3,660.00** is proposed. The settlement amounts andthe one modification to a citation are as follows:

 

 
| **Citation No.**   | **Originally Proposed  Assessment** | **Settlement Amount** | **Modification**                                                                                                        |
|--------------------|--------------------------------------|-----------------------|-------------------------------------------------------------------------------------------------------------------------|
| **WEVA 2023-0214** |
| 9581075            | $2,561.00                            | $1,453.00             | Reduce Monetary  Penalty Only

**43% reduction in  penalty**                                                          |
| 9581076            | $1,858.00                            | $1,055.00             | Reduce Monetary  Penalty Only

**Another 43% penalty  reduction**                                                     |
| 9581077            | $3,820.00                            | $1,152.00             | Modify Severity from  "Fatal" to "Lost Workdays or Restricted Duty"

**70 % reduction in penalty** |
| **Total**          | **$8,239.00**                        | **$3,660.00**         | **56% overall drop in  penalty from the regularly assessed amount **                                              |

** **

****MSHA inspector Cody John Tominack,diligently performing his inspection responsibilities, found the three, nowadmitted, violations involved with this docket. 

**Analysis**

** **

            Asin this instance, the Secretary often touts in settlements that themodifications to some citations result “only” in a monetary reduction. Congresswas not so cavalier about penalty reductions. Instead, it clearly expressedthat penalties were to be of a sufficient order that non-compliance would bemore expensive than compliance. As the Commission remarked in *Davis Coal*,2 FMSHRC 619 (March 1980), “[i]n constructing the 1977 Act, **Congress paidsignificant attention to penalties, noting its dissatisfaction *with the lowsettlements* of penalties under the 1969 Coal Act. Section**110(k)8 wastherefore made a part of the 1977 Act, in order that penalties, mandatory underthe 1977 Act, would not be compromised, mitigated or settled except with theapproval of the Commission. As detailed in the Senate Report, the **Congressstated: ‘In short, the purpose of a civil penalty is to induce those officialsresponsible for the operation of a mine to comply with the Act and itsstandards.’ To be successful in the objective of including (inducing) effectiveand meaningful compliance, a penalty should be of an amount which is sufficientto make it more economical for an operator to comply with the Act'srequirements than it is to pay the penalties assessed and continue to operatewhile not in compliance.**” *Id.* at 625. (emphasis added).

 

            Withboth citations 9581075 and 9581076 resulting in **43% reductions in the penalty**assessed, the Secretary simultaneously stands by the issuing inspector’sevaluations, an incongruous result is produced. Such arrangements lay bare thatthe mine operator’s focus is on the penalty amounts, not the evaluations of gravityor negligence. And this makes sense because penalties are not tax deductible. TreasuryRegulation 26 C.F.R. § 1.162-21 (2021). A reduction in civil penalties istherefore a tax savings, as such penalties as are imposed constitute a non-tax-deductiblefinancial burden. In short, lower penalties benefit mine operators because itreduces their tax obligations

 

**CitationNo. 9581075; Failure to maintain equipment in safe operating condition, asrequired by 30 C.F.R. § 75.1725(a).**

 

            Thiscitation, issued on December 15, 2022, stated that 

 

[t]he number 14464 feeder locatedat the 4 West seal construction area was not maintained in a safe operatingcondition. When inspected **theshut off cable**that stretches over the feeders chain **couldnot activate the emergency stop button**when pulled from any angle. When tested **the rusted spring** would hold the metal flap a measured 1.5 inches frompressing the emergency stop button. This could result in crushing injuries if aminer would fall into the mouth of the feeder.

 

Petitionfor civil penalty at 5. (emphasis added)

 

            Thecited standard, 30 C.F.R. § 75.1725(a), requiresthat “Mobile and stationary machinery and equipment shall be maintained in safeoperating condition and machinery or equipment in unsafe condition shall beremoved from service immediately.” This standard was cited 10 times in twoyears at this mine (10 to the operator, 0 to a contractor).” 

 

            Themotion seeks to have the negligence reduced to ‘low,’ meaning considerable mitigatingcircumstances must be present. The operator asserts it was unaware of thecondition; that the coal feeder was not in service at the time of the citation’sissuance, and that the last weekly electrical exam, conducted on December 12,2022, indicated that the condition did not exist at that time. That the operatorwas ‘unaware,’ does not constitute *considerable* mitigation. The claimthat the feeder was not in service counts for nothing in any negligence evaluation,as it doesn’t even amount to the rejected “alternative safety measures” roundlyrejected by United States Courts of Appeals. Further, there is no claim thatthe equipment was tagged out. 

Last, the claimthat the condition didn’t exist three days earlier is not credible, as a rustedspring would not develop in three days’ time. Inferentially, the Secretaryagrees with these observations, as she stands by the inspector’s evaluation inall respects, including negligence. Motion at 3. 

 

            Giventhe above, it is disconcerting that the Secretary would still agree to such anenormous penalty reduction of 43% for this violation, especially given that,per the inspector’s unchallenged determination that fatal crushing injuries couldresult if a miner were to fall into the mouth of the feeder. 

 

**Citation No. 9581076; Failure to adhere to safeguard notice, per 30 C.F.R. § 75.1403,a statutory provision, which safeguards are designed to minimize hazards withrespect to transportation of men and materials**

 

            Thiscitation, also issued on December 15, 2022, invokes, as noted above, the safeguardstandard, 30 C.F.R. § 75.1403.  The condition stated: 

 

[t]he clearance space along the 5north 1 and 2 track haulage was not kept clear of loose rock and debris. **A move was observed dragging andrubbing loose materials along the rails and in between the rails.** Debris consisting of crushed stonewas above the rail from Grapevine bottom to 58 crosscut on the North main line.The track clearance space needs cleaned of all debris.

 

Petition for civil penalty at 7. (emphasis added).

 

            Aswith the citation discussed above, here too the operator seeks to have thenegligence cast as ‘low.’ The operator asserts that the preshift exam did notreflect the problem, suggesting that it did not then exist. Also, the operatorcontends it did not know of the problem. Further, the operator stated that a motor crew was delivering aroof bolting 4 machine on a dolly that is 13 inches lower than a normal supplycar, therefore, intermittently contacting material along the outer edge of thetrack bed. Respondent also asserted that that the inspector observed thecondition being created by the dolly and that normal haulage equipment wouldnot contact the material, thus, the cited condition would not be present andwould not be deemed a violation by the preshift examiner.  Motion at 3-4.

 

            Inthis instance, the reasons advanced by the operator to recast the negligenceappear plausible, although the Secretary’s concession is not to the negligenceevaluation listed by the inspector. Instead, the Secretary stands by the issuinginspector’s designation that the negligence was high.  This is not a surprise asthe inspector observed the violation in real time. Given that, it isdisconcerting that the CLR agreed to a near half-off reduction in the penalty.  

 

**However, that is not the end of thestory, as revealed in the third citation in this docket, Citation No. 9581077,discussed next.**

 

 

**CitationNo. 9581077;****Violationof 30 C.F.R. §75.360;****Failure to conduct a preshift examination at within3 hours preceding the beginning of any 8-hour interval during which any personis scheduled to work or travel underground.**

** **

            Thiscitation, as with the two citations just analyzed, was also issued on December15, 2022. The now-admitted violation was issued for an alleged violation of§75.360(a)(1).   Titled “Preshift examination at fixed intervals,” thisstandard provides that “a certified person designated by the operator must makea preshift examination within 3 hours preceding the beginning of any 8-hourinterval during which any person is scheduled to work or travel underground.” 

 

            Significantly,the citation is inextricably tied to the other two admitted violations in this docket.Inspector Tominack spelled this out in his description of the “Condition or Practice”for this citation, stating: 

 

A preshift examination was notbeing conducted within 3 hours preceding the beginning of an 8 hour interval onthe 4 West Seal construction area. The conditions cited in citations **No. 9581074**and **No. 9581075**, accumulations in entire area and emergency stop buttonnot working on feeder. The construction area is only operated on day shift. Themidnight pre shifter needs to examine the area. **The construction area had 4date, time, and initial boards without any initials found for 12/15/22. Fourminers were in the area working when the inspection started.**

 

Petitionfor civil penalty at 9. (emphasis added).

 

            TheSecretary had proposed a civil penalty of $3,820.00 for this violation, but now seeks a **70% reduction****in the penalty, reducing the penalty from $3,820.00to $1,152.00.**The Gravity was evaluated as: Unlikely, Fatal, with 4 PersonsAffected. The violation was designated as Non-S&S. Negligence was evaluatedas high. 

 

            Theoperator seeks to have the likely injury or illness dropped two steps down fromthe inspector’s designation of ‘fatal,’ to ‘lost workdays or restricted duty.’ Tosupport that claim, the operator asserts that, regarding the other two violations,as just described above, “the condition cited in Citation 9581075 and referencedin the body of Citation 9581077 does not apply to 75.360(a)(1)[**preshift exams**] [and] Respondent further assert[s] that relatedcitation, [No.] **9581074**,[2]was evaluated as lost workdays or restricted duty.” Motion at 4. 

 

 

            TheCommission has spoken in unambiguous terms about the vital importance ofpreshift exams, stating:

 

The preshift inspection requirementis the linchpin of Mine Act safety protections. Without a timely preshiftinspection, unwary miners may be sent into areas containing hazardousconditions. Congress explicitly acknowledged the **importance** of the **preshift**inspection by making it a longstanding statutory mandate, dating back to theFederal Coal Mine Safety Act of 1952, 30U.S.C. § 471 et seq. (1955). These provisions were strengthened in theFederal Coal Mine Health and Safety Act of 1969, 30U.S.C. § 801 et seq. (1976), and carried over in identical fashion to theMine Act. The Senate Report on the 1969 Coal Act emphasized the importance ofthese inspections, stating that “[c]hanges occur so rapidly in the mines thatit is imperative that the examinations be made as near as possible to the timethe workmen enter the mine.” S. Rep. 411, 91st Cong., 1st Sess. 57 (1969), *reprintedin* Senate Subcommittee on Labor, Committee on Labor and Public Welfare,94th Cong., 1st Sess., Part I *Legislative History of the Federal Coal MineHealth and Safety Act of 1969,* at 183 (1975) (“*Coal Act Legis. Hist.*”).

 

Both the Senate Report and theConference Report emphasized:

No miner may enter the undergroundportion of a mine until the preshift examination is completed, the examiner’sreport is transmitted to the surface and actually recorded, and until hazardousconditions or standards violations are corrected. *Coal Act Legis. Hist.*and 183 and 1610.

 

In its recent 1996 revision ofsafety standards for the ventilation of underground coal mines, **the MineSafety and Health Administration acknowledged that: [t]he preshift examinationis a critically important and fundamental safety practice in the industry.**It is a primary means of determining the effectiveness of the mine’sventilation system and of detectingdeveloping hazards, such as methane accumulations, water accumulations, and badroof. 61 Fed. Reg. 9790 (1996) ... In *Emerald Mines Corp.,* 7 FMSHRC 437 (March 1985)(ALJ), Administrative Law Judge Broderick recognized the **importance** ofthe **preshift** examination in the arsenal of protections afforded to thoseworking in the mines. In holding that the failure to conduct a preshiftinspection was S&S, he stated that:[t]hewhole rationale for requiring preshift examinations is the fact thatunderground coal mines are places of unexpected, unanticipated hazards: roofhazards, rib hazards, ventilation and methane hazards. I conclude that failureto make the required preshift examination of active workings in an undergroundcoal mine contributes to “a measure of danger to safety” which is reasonablylikely to result in a reasonably serious injury. 7 FMSHRC at 444. ThisCommission has recently had occasion to pronounce the **preshift**requirement “unambiguous” and of “fundamental **importance** in assuring asafe working environment underground.” *Buck Creek Coal Co.,* 17 FMSHRC 8,15 (January 1995).  

 

*ManalapanMining,*18 FMSHRC1375, 1391-1393 (emphasis added). 

 

            Thatwas then, this is now.

 

            Bothcontentions offered by the operator are troublesome. As to the first ground,that Citation No. 9581075, which was referenced by the Respondent in claimingthat the condition cited in that citation does not apply to preshift exams, theSecretary, per usual, says nothing about the validity of that contention. Caselaw suggests that the Respondent’s claim is dubious.

 

Section75.360(b)(3) states that the preshift examination is to include “workingsections,” which are defined as “[a]ll areas of the coal mine from the loadingpoint of the section to and including the working faces.” 30C.F.R. § 75.2. *Jim Walter Resources*, 28 FMSHRC 579, 599 (Aug. 2006)

 

            TheCommission has held that the scope of a preshift exam should be broadly construedto avoid anomalous results: 

 

Given that the statute andregulation require a preshift examination of ‘the active workings of a coalmine’ and that coal-carrying conveyor belt entries in which miners are normallyrequired to work or travel clearly fall within the definition of ‘activeworkings,’ the statute and regulation appear to require coal mine operators toconduct a preshift examination of such entries. It would be anomalous if themere addition of coal-carrying conveyor belts to an entry had the effect ofremoving the entry from the scope of the preshift examination requirement.

 

*Jones andLaughlin Steel*, 8FMSHRC 1058, 1061.

 

            TheCourt of Appeals for the D.C. Circuit reached a similarly broad conclusion in *SpartanMining*, 415 F.3d 82, 85 (July 22, 2005). 

 

            Akey element in evaluating the scope of preshift examinations is the “work ortravel” aspect. Here, issuing inspector Tominack stated that in the seal constructionarea “four miners were in the area working when the inspection started.” Petitionfor civil penalty at 9.

 

            Asset forth below, the Court’s hands are tied in assessing the claim, as it isnot permitted to make inquiry about the applicability of the preshift exam inthe context of settlement motions.  

 

            Asto the second ground, that a separate citation, No. 9581074,****supports****the argument that the preshift exam violation should also be listed as “lost workdays or restricted duty,” the Court, inperforming its due diligence in the spirit of the Mine Act’s provision at 30U.S.C. §820(k), that “[n]o proposed penalty which has been contested before theCommission under section 815(a) of this title shall be compromised, mitigated,or settled except with the approval of the Commission.” and in its Commission-designatedrole to provide “front-line oversight,” per *AmCoal*, 40 FMSHRC 983, 987,[3]requested that the parties supply a copy of the citation referenced as abasis for redesignating the preshift exam injury down from ‘fatal,’ to ‘lostworkdays, restricted duty.’ In order to intelligently assess that claim, theCourt asked the parties to supply a copy of that citation, No. 9581074.  

 

            Thenon-attorney representative for the Secretary, CLR Hayhurst, declined toprovide the Court with the Citation identified in the motion informing, “[t]heSecretary stands by the information provided in the Motion to ApproveSettlement and declines to provide additional evidence not in the record inthis matter.” Email from CLR Hayhurst to the Court, June 28, 2023. 

 

            Withrespect for the Commission’s present case law on the issue of settlementmotions, the Secretary’s refusal to even provide the Court with a copy of thecitation cited by the mine operator as support for its claim that the expectedinjury should be classified as “lost workdays or restricted duty,” demonstratesthat the Court’s review role of settlements is only ministerial. It is worth itto stop and think about this. The parties submit that another citation, not inthe docket before the Court, is instructive for their position that lostworkdays is the more appropriate designation, but the Court may not see thereferenced citation. Beyond ministerial, the Court’s review role is perfunctory,if refusing to provide a copy of a cited document is an acceptable posture. Tobe blunt, in the Court’s opinion, if it may not see a citation relied upon insupport of the operator’s position for reducing the gravity of the reasonablyexpected injury, then its review role is to act only as a rubber stamp. 

 

            Asthis Court has often remarked, reasonable inquiry is not allowed, as long asthe *AmCoal*elements are present. 

 

**Reasonable Inquiry is not Permitted**

** **

Despite the Court’s analysis and concerns, 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 *The American Coal Co.*, 40 FMSHRC 983 (Aug. 2018) (“*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.

 

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). 

 

 

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).

 

 

 

 

The Court has considered theSecretary’s Motion and approves it **solely on the basis of the Commission’sdecisions in***The American Coal Co*., 40 FMSHRC 983 (Aug. 2018) and *RockwellMining, LLC*, 40 FMSHRC 994 (Aug. 2018) for the standard to be applied byCommission administrative law judges when reviewing such settlement motionsunder the Commission’s interpretation of section 110(k) of the Mine Act. 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. 

** **

**WHEREFORE**, the motion for approval ofsettlement is **GRANTED**. Citation No. 9581077 is modified to list thegravity of the injury or illness from ‘fatal’ to ‘lost workdays or restrictedduty.’ The penalties for the three citations in this docket are all reduced as reflectedin the table above. The****Respondent is **ORDERED****to pay**a penalty of $3,660.00****within 30 days of this order.Upon receiptof payment, this case is **DISMISSED**.[5]

 

 

 

 

/s/William B. Moran

                                                                                    WilliamB. Moran

                                                                                    AdministrativeLaw Judge

 

 

Distribution:

 

Donald R. Hayhurst, Conference& Litigation Representative, U.S. Department of Labor,

MSHA, 604 Cheat Road,Morgantown, WV 26508 (hayhurst.donald@dol.gov)

 

Wm.Allen McGilton, American Consolidated Natural Resources, Inc., 46226 NationalRoad, St. Clairsville, OH 43950. (amcgilton@acnrinc.com)

----

[1]None of the “CLRs”are attorneys. As such they are not licensed to practice law.

[2]The Court thoughtthat perhaps the reference to 9581074 was a typographical error but the responsefrom the CLR indicated there was no such error. 

 

[3]Thefulltext of the Commission’s description of the judge’s role informed: “As theCommission has repeatedly observed, a Judge's ‘front line oversight of thesettlement process is an adjudicative function that necessarily involves widediscretion.’ *Id*. [citing *Sec'y of Labor on behalf of Shemwell v.Armstrong Coal Co.*, 36 FMSHRC 1097, 1101 (May 2014)]. Judges must havesufficient information to fulfill their duty of determining if a settlement ofa penalty is fair, reasonable, appropriate under the facts, and protects thepublic interest. Moreover, such information permits a Judge to fulfill the dutyof articulating reasons for the approval so that the process of compromisingpenalty amounts is transparent, as Congress intended. A Judge who properlydetermines that a settlement motion lacks sufficient information maypermissibly request further facts from the parties.” *AmCoal* at 987-988.

[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]Penaltiesmay 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vital to include Docket and A.C. Numbers when remitting payments.