**FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION**

 

OFFICE OF ADMINISTRATIVELAW JUDGES

7 PARKWAY CENTER, SUITE290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE: 412-920-7240/ FAX: 412-928-8689

 

 
| SECRETARY OF LABOR

  MINE SAFETY AND HEALTH        

  ADMINISTRATION (MSHA),

                           Petitioner,

 

                        v.

 

GMS MINE REPAIR,

               Respondent.                                                                          |   |   | CIVIL PENALTY PROCEEDING

 

Docket No. WEVA 2021-0431

A.C. No. 46-09029-537541 MVK

 

 

 

 

Mine: Mountaineer II Mine |
|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|------------------------------------------------------------------------------------------------------------------------------------------------------|

 

**ORDER DENYINGRESPONDENT’S MOTION FOR SUMMARY DECISION**

**ORDER GRANTINGSECRETARY’S MOTION FOR SUMMARY DECISION**

**ORDER TO PAY**

 

Before: Judge Lewis 

 

            On November 19, 2021, The Secretary of Labor(“Secretary”) and GMS Mine Repair (“Respondent”) filed with the undersignedcross-motions for Summary Decision in Docket No. WEVA 2021-0431. The Respondentfiled its Reply Brief on November 23, 2021, and the Secretary filed its ReplyBrief on December 10, 2021. The sole issue in question concerns the method ofcalculating an operator’s violation history for purposes of proposing a penaltyamount, and whether citations/orders that were issued prior to the 15-monthperiod preceding the citation/order, but became final within the 15-monthperiod, may be included in the operator’s violation history. 

 

**Undisputed Facts**

 

            The parties submitted the following jointstipulations:

 

1.     TheAdministrative Law Judge and the Federal Mine Safety and Health ReviewCommission have jurisdiction to hear and decide this civil penalty proceeding pursuantto Section 105 of the Federal Mine Safety and Health Act of 1977. 

2.     GMS MineRepair is an operator under Section 3(d) of the Act.

3.     Operationsof GMS Mine Repair are subject to the jurisdiction of the Act.

4.     GMS MineRepair is a contractor who performs services at various mines.

5.     Pursuantto contract with Mingo Logan Coal, LLC, the operator of the Mountaineer IIMine, GMS Mine Repair was performing services at the mine on April 20 and 27,2021 when the citations at issue in this proceeding were issued.

6.     MSHAInspectors Andrew Bell and Paul Fought were acting in their official capacityand as authorized representatives of the Secretary of Labor when each of thecitations at issue in this proceeding were issued.

7.     The totalproposed penalty amounts for the five citations at issue in this matter havebeen proposed by MSHA pursuant to 30 U.S.C. Section 820(a) of the Act and 30CFR Part 100.3.

8.     Payment ofthe total proposed penalty amount, $7,331, for the five citations at issue in this matter would not affectthe ability of GMS Mine Repair to remain in business.

9.     Copies of the citations at issuein this matter, along with all continuation forms and modifications, wereserved on GMS Mine Repair or its agent as required by the Act.

10.  The copies of the five citations that were includedwith the Secretary’s penalty petition, attached as part of Exhibit A, areaccurate and authentic copies of those citations, with all modifications andabatements, and may be admitted into the record in this matter.

11.  The violations cited in each of the citations atissue in this matter were abated in good faith and were subject to a 10%penalty reduction.

12.  The Respondent agrees to accept all five citationsat issue in this docket as issued, including any findings of gravity andnegligence.

13.  The only issues being contested by Respondent inthis proceeding are the method of calculating the proposed penalty amounts usedby the Secretary and the total amount of the proposed penalties.

14.  The Respondent agrees that the penalty pointcomputations shown on Exhibit A are correct except for the number of pointsassigned for history of violations in the column “VPID Pts.”

15.  “VPID” refers to violations per inspection day.

16.  For a contractor, such as Respondent, the overallhistory of violations points is calculated based upon the total number ofcitations and orders issued to the contractor at all mines at which it operateswhich is different from a mine operator which only considers citations/ordersissued at a particular mine.

17.  In assessing the penalty points for the VPIDcriteria MSHA considers all citations or orders that became final during the15-month period immediately preceding the issuance of the citation or orderbeing assessed.

18.  For the four citations in this case that were issuedon April 20, 2021, the relevant time period for determining the Respondent’shistory of violations and the amount of penalty points was January 20, 2020through April 19, 2021.

19.  For the remaining citation in this case that wasissued on April 27, 2021, the relevant time period for determining theRespondent’s history of violations and the amount of penalty points was January27, 2020 through April 26, 2021.

20.  The dispute in this case is over which citations andorders are to be included in determining the Respondent’s history ofviolations.

21.  Under the Secretary’s approach, all citations andorders that became final during the relevant 15-month period are included inthe determination of an operator’s violation history.

22.  The Respondent argues that only citations and ordersthat were both issued during the relevant 15-month period and became finalduring that period should be included in the determination of the Respondent’sviolation history.

23.  If the Secretary’s approach is ultimately upheld,the penalty points for the VPID criterion is correct and the penalty amountsare correct as shown on Exhibit A.

24.  Under the Respondent’s approach to calculating thehistory of violations criterion for each of the citations at issue in thisproceeding, five previous citations would be considered which corresponds to 0penalty points.

25.  Under the Respondent’s approach to calculating thehistory of violations criterion for each of the citations in this docket, with0 penalty points for history of violations, the following penalty amounts wouldbe applicable per Part 100, 100.3:

 

CitationTotal PointsPenalty(including good faith reduction)

9298012         86                    $1,006

9298012         86                    $1,006

9298015         46                    $125

9298016         46                    $125

9293663         86                    $1,006

Total                                       $3,268

 

26.  Regardless of the administrativelaw judge’s decision addressing this dispute, both parties reserve the right toappeal any decision to the Commission.

 

Secretary’sMotion for Summary Decision, 3-6.

 

**Summary Decision Standard**

 

The Court may grant summarydecision where the “entire record...shows: (1) That there is no genuine issue asto any material fact; and (2) That the moving party is entitled to summarydecision as a matter of law.” 29 C.F.R. § 2700.67(b); *see also UMWA, Local2368 v. Jim Walter Res., Inc*., 24 FMSHRC 797, 799 (July 2002); *EnergyWest Mining*, 17 FMSHRC 1313, 1316 (Aug. 1995) (*citing Celotex Corp. v.Catrett*, 477 U.S. 317, 327 (1986), which interpreted Fed.R.Civ.P. 56). TheCommission has analogized its Rule 67 to Federal Rule of Civil Procedure 56,which authorizes summary judgments upon a proper showing of a lack of agenuine, triable issue of material fact. *Hanson Aggregates New York, Inc.*,29 FMSHRC 4, 9 (Jan. 2007). A material fact is “a fact that is significant oressential to the issue or matter at hand.” *Black's Law Dictionary* (9thed. 2009, *fact*). “There is a genuine issue of material fact if thenonmoving party has produced evidence such that a reasonable factfinder couldreturn a verdict in its favor.” *Greenberg v. Bellsouth Telecommunications,Inc*., 498 F.3d 1258, 1263 (11th Cir. 2007) (citation omitted). The courtmust evaluate the evidence “in the light most favorable to ... the party opposingthe motion.” *Hanson Aggregates*, 29 FMSHRC at 9. Any inferences drawn “fromthe underlying facts contained in [the] materials [supporting the motion] mustbe viewed in the light most favorable to the party opposing the motion.” *Id.*Though the moving party bears the initial burden of informing the court of thebasis for its motion, it is not required to negate the nonmoving party’sclaims. *Celotex*, 477 U.S. at 323. “When the moving party has carried itsburden under Rule 56(c), its opponent must do more than simply show that thereis some metaphysical doubt as to the material facts.... Where the record takenas a whole could not lead a rational trier of fact to find for the nonmovingparty, there is no ‘genuine issue for trial.’” *Scott v. Harris*, 550 U.S.372, 380 (2007) (citation omitted).

 

**Analysis**

 

            Section110 of the Mine Act, in relevant part, provides:

 

(a) The operator of a coal orother mine in which a violation occurs of a mandatory health or safety standardor who violates any other provision of this Act, shall be assessed a civilpenalty by the Secretary which penalty shall not be more than $10,000[currently $73,901] for each such violation.

 

(i) The Commission shall haveauthority to assess all civil penalties provided in this Act. In assessingcivil monetary penalties, the Commission shall consider the operator's historyof previous violations, the appropriateness of such penalty to the size of the businessof the operator charged, whether the operator was negligent, the effect on the operator'sability to continue in business, the gravity of the violation, and thedemonstrated good faith of the person charged in attempting to achieve rapidcompliance after notification of a violation. In proposing civil penaltiesunder this Act, the Secretary may rely upon a summary review of the informationavailable to him and shall not be required to make findings of fact concerningthe above factors.

 

30USC § 820(a)(1)(i).

 

            TheSecretary has promulgated regulations, which implement the statutoryrequirements contained in Section 110 of the Mine Act, which state in relevantpart:

 

*History of previous violations*. An operator's history ofprevious violations is based on both the total number of violations and thenumber of repeat violations of the same citable provision of a standard in a preceding15-month period. Only assessed violations that have been paid or finallyadjudicated, or have become final orders of the Commission will be included indetermining an operator's history. The repeat aspect of the history criterionin paragraph (c)(2) of this section applies only after an operator has received10 violations or an independent contractor operator has received 6 violations.

 

(1) Total number of violations.For mine operators, penalty points are assigned on the basis of the number ofviolations per inspection day (VPID)(Table VI). Penalty points are not assignedfor mines with fewer than 10 violations in the specified history period. Forindependent contractors, penalty points are assigned on the basis of the totalnumber of violations at all mines (Table VII). This aspect of the historycriterion accounts for a maximum of 25 penalty points.

 

30 CFR §100.3(c).

 

            The dispute in this case concerns what preciselygets counted as the operator’s violation history in the 15-month period. Thereis no disagreement that citations and orders that have become final in the15-month period are included. However, the Respondent argues that in order tocount towards the operator’s history, the violation must have both occurred andbeenpaid, adjudicated, or have become afinal order of the Commission during the 15-month period. The Secretary arguesthat all citations and orders that have become final in the 15-month period arecounted, regardless of when they were issued. 

 

            On its face, the regulation is ambiguous and canbe read to support either party’s position. Based on the language of theregulation, it is unclear if the second sentence is intended to limit theviolations mentioned in the first sentence to those that were issued andfinalized in the preceding 15-month period, or if it is intended to clarifythat the 15-month period is only in reference to the finalization date. Bothcompeting interpretations are reasonable.

 

            MSHA is entitled to deference of an MSHAregulation as long as its interpretation is not “plainly erroneous orinconsistent with the regulation.” *MSHA v. Spartan Mining Co.*, 415 F.3d82, 84 (D.C. Cir. 2005)(quoting *Thomas Jefferson University v. Shalala,* 512U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994)); *see Secretaryof Labor v. Excel Mining, LLC,* 334 F.3d 1, 6 (D.C.Cir.2003). “Infact, deference is appropriate when the agency advances a permissibleinterpretation even if that interpretation diverges from what a first-timereader of the regulation would conclude is the best interpretation ofthe regulation.” *MSHA v. Hecla Ltd*., 38 FMSHRC 2117, 2122 (Aug.2016).

 

            In support of its interpretation, the Secretarysubmits language from the Preamble to the Final Rule, as well as MSHA’s ProgramPolicy Manual. Courts have held that agency interpretations that lack the forceof law, such as those in opinion letters and policy manuals, are not entitledto Chevron-style deference when used to interpret ambiguous statutes, but doreceive deference under *Auer* when interpreting ambiguousregulations. *See**Christensen v. Harris Cnty*, 529 U.S. 576, 587(2000). In response to some commenters’ concerns about the changes, the FinalRule states, “As each penalty contest becomes final, however, the violation willbe included in an operator's history as of the date it becomes final.” *Secy.Mot.*, Exhibit B, at 13604. MSHA’s Program Policy Manual states that “Overallhistory is based on the number of citations/orders issued to the mine operatorat the applicable mine that became final orders of the Federal Mine Safety andHealth Review Commission (Commission) in the 15 months preceding the occurrencedate of the violation being assessed.” *Sec’y Mot*., Exhibit C.

 

            Various passages of the Preamble also supportthe Respondent’s argument. *See Resp. Mot.* at 4. In response to somecommenters’ concerns about the Final Rule shortening the relevant time-periodfrom 24 to 15 months, MSHA replied that the agency determined that it tookapproximately three months for a penalty assessment to become final, so the15-month period would provide the agency with a full year of data. *Secy.Mot.*, Exhibit B, at 13604. Furthermore, the agency justified the shorteningof the time-period by stating that it would provide the agency with “a more recentcompliance history” and that “MSHA believes that operators who violate the MineAct and MSHA's health and safety standards and regulations should receivepenalties for those violations as close as practicable to the time theviolation occurs in order to provide a more appropriate incentive for changingcompliance behavior.” *Id.*However, it is not for this Court to determinewhich interpretation is the most reasonable. The Supreme Court has held that “itis axiomatic that the Secretary's interpretation need not be the best or mostnatural one by grammatical or other standards. Rather, the Secretary's viewneed be only reasonable to warrant deference.” *Pauley v. BethEnergy Mines,Inc.*, 501 U.S. 680, 702 (1991)(citations omitted). 

 

            Furthermore,Respondent’s interpretation of the regulation would likely lead to an absurdapplication of the statutory provision in the Mine Act concerning an operator’shistory of previous violations. Section 110(i) of the Act makes clearCongress’s intent that an operator’s history of previous violations is one ofthe criteria that must be considered in assessing a penalty. 30 USC 820(a)(1)(i). However,under the Respondent’s interpretation of the regulation, most (if not all)violations would not be considered in the penalty assessment. This is due tothe fact that when an operator contests a citation or order, it rarely becomesfinal within 15 months. *See Secy Mot.* at 13-16. Respondent’sinterpretation would likely lead to a perverse incentive for operators tosimply contest every citation and order until the expiration of 15 months as away of lowering assessed penalties by placing most previous violations out ofthe realm of consideration. This framework would wholly negate the clearcongressional mandate that the operator’s history of previous violations beconsidered in assessing penalties. 

 

**WHEREFORE**, the Secretary’sMotion for Summary Decision is **GRANTED** and the Respondent’s Motion forSummary Decision is **DENIED**. Furthermore, Respondent GMS Mine Repair is **ORDERED**to pay the Secretary of Labor the sum of $7,331.00 within 30 days of thisorder.[1]

 

 

 

 

/s/John Kent Lewis

                                                                        JohnKent Lewis

                                                                                    AdministrativeLaw Judge

 

 

Distribution: First Class Mail and e-mail

 

Robert S. Wilson, Esq., U.S. Department of Labor, Office ofthe Regional Solicitor, 201 12th Street South, Arlington, VA 22202; wilson.robert.s@dol.gov

 

Andrew J. Ellis, Esq., 224 Moyers Road, Bruceton Mills, WV26525; aellis@gmsminerepair.com

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[1]Please pay penalties 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. Please include Docket and A.C. Numbers.