**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 2022-0554

AC No. 46-08626-560349

 

 

 

Mine: Tug  Fork Preparation Plant

 

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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 one citation, asstated below. The total penalty would be reduced from the original assessedamount of**$1,365.00**to**$511.00.**This****represents a **63%**reduction in the overall penalty for this docket. 

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

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

**Amount** | **Other  modifications to citation/order**                                        |
|-------------------------|--------------------------------------|----------------------------|------------------------------------------------------------------------------------|
| **9566748**

      | $1,069.00                            | $215.00                    | Violation of  30 C.F.R. § 77.1606 (c). **Penalty reduction of 80%**

   |
| **9566745**

** ** | $296.00                              | $296.00                    | Violation of  30 C.F.R. §  Sustained as Issued - No penalty reduction             |
| **TOTAL**               | **$1,365.00**                        | ******$511.00**            | **Total  penalty reduction of 63%**                                               |

** **

Citation No. 9566748 was *regularly*assessed at $1,069.00. It involved a now-admitted violation of 30 C.F.R. §77.1606(c). That standard pertains to loading and haulage equipment and itsinspection and maintenance. The cited subsection (c) provides that “[e]quipmentdefects affecting safety shall be corrected before the equipment is used.” 

The citation described the condition as follows: “The Co. No. 541, 733DCaterpillar haul truck, is not being maintained free of defects affectingsafety, as required. When checked, the offside railing atthe top of the ladder is broke free in all but one spot, allowing the railingto move back and forth. This truck is operated 5 days per week, 12 hours perday. Left uncorrected, this condition, will expose the miner(s) to hazardsassoci[iat]ed with falling from elevated heights, causing permanently disablinginjury[] to the miner(s). From the ground to the landing where the railing isbroke free is approx. 8-9 feet. The operator immediately removed the truckfrom service until repairs are made.” 

 

Petit. forcivil penalty at 10. 

 

Evaluating the violation, the inspector marked the injury as reasonablylikely to occur with permanently disabling injuries. Accordingly, the inspectorlisted the violation as “significant and substantial.” Negligence was marked as‘low.’ *Id.*

 

The violation was terminated the same day with the inspector stating that“[a] qualified person has replaced/corrected the condition, the railing nowappears to be secure to the machine.” *Id.*

 

            In support of the **80%(eighty percent)****reduction in the penalty**, resulting in a penalty of$215.00, from the original regular assessment of $1,069.00, the Secretaryoffers the following:

 

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 condition cited is not a discrete safety hazard to miners. Respondentcontends that the equipment operator is not routinely exposed to the off-siderailing, which is not in the access path to the operator’s cab. Additionally,the Respondent would argue that the railing was loose, but still intact andwould still perform the necessary duties to prevent a miner from falling fromthe elevated platform. The Secretary has exercised his discretion to modify thesignificant and substantial designation associated with citation #9566748and to modify the penalty per part 100.3 accordingly.

 

Motion at 3.

** **

The****Courtis dismayed that the Secretary has bought into the Respondent’s argument thatthe hazard is unlikely to occur. Given all the attendant conditions associatedwith this violation: that the offside railing at the top of the ladder was *brokenfree in all but one spot*, allowing the railing to move back and forth andgiven that *the truck is operated 5 days per week, 12 hours per day* and given*that a fall involved 8 to 9 feet*, a height which presumptively would resultin a permanently disabling injury, the Secretary’s agreement is hard tounderstand. Not one of the conditions noted by the inspector is disputed. 

The Court notesthat if the inspector had taken a photograph of the hazardous condition hefound, the Secretary might have been foreclosed from agreeing to this deminimis penalty. 

 

That agreementis coupled with the Secretary’s oft-claimed assertion that he can remove  asignificant and substantial designation with impunity. That is incorrect. In amotion, the Secretary can assert that a violation was unlikely to occur, but itis only by that redesignation that a non-significant and substantial violationmay follow. As the Court has informed many times before, the cases cited by thenon-attorney representative do not stand for the notion that he canindependently drop a significant and substantial designation, as if by anedict. 

 

The two casescontinually cited by the Secretary, *Am. Aggregatesof Michigan, Inc*., 42 FMSHRC 570, 576-79 (Aug. 2020) and *MechanicsvilleConcrete**, Inc*., 18 FMSHRC 877, 879-80 (June 1996)) do notsupport the claim that the Secretary may peremptorily delete a significant andsubstantial finding. Such a modification can only occur upon determining thatat least one of the two elements of such a finding is missing: that areasonably likelihood of reasonably serious injury was not present. 

 

A seeminglyimpenetrable wall, as noted above, CLRs continue to assert that “[t]heSecretary has exercised [the] discretion to modify the significant andsubstantial designation associated with citation #9566748 and to modify thepenalty per part 100.3 accordingly. 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)).” Motion at 3.  

 

*Mechanicsville***only holds that *thejudge* may not essentially make a prosecutorial decision to designate acitation as S&S *in the first instance*, as that is an exercise ofenforcement authority reserved for the Secretary. Thus, presented with acitation with no significant and substantial designation, a judge may not addthat designation on his or her own.[1]*Am. Aggregates*simply echoes*Mechanicsville*,**holding “[w]hether a violation is S&S is amatter in the first instance of prosecutorial discretion. The Mine Act,therefore, recognizes the particular expertise of MSHA in judging whether aviolation is S&S. Indeed, *if MSHA does not charge an S&S violation*,the Commission cannot make an S&S finding. *Mechanicsville Concrete,Inc.*, 18 FMSHRC 877, 879-80 (June 1996). Commission Judges do not have thediscretion to make such elevated finding *unless it is asserted in thefirst instance by MSHA*.” *Am. Aggregates*at 576 (emphasisadded). 

 

            Make no mistake, here*both* citations in this Appalachian Resource docket *were*designatedby the MSHA inspector as significant and substantial. Thus, clearly, *Am.Aggregates* and *Mechanicsville*do not apply. The Court does notcriticize the CLRs for habitually inserting this claim; no doubt they do it atthe behest of attorneys for the Secretary, as the CLRs are not attorneys, andit is unlikely that they all developed an analysis of the cases cited on theirown. That the Secretary may have this position on its *wish list* is notthe same thing, as Commission decisions have not, up to this point, agreed withthat claim. The Court has pointed this out several times before, but no doubtthe CLRs will continue to cite those inapposite holdings, because they are toldto do so. 

 

**The unsafe railing violationmust also be viewed in context.**

** **

Earlier on thesame day as the defective railing violation was found, the inspector found asecond, significant, violation *on the same piece of equipment*. Theinspector found that the equipment operator of this haul truck was not wearingthe seat belt, citing 30 C.F.R. §77.403-1(g), with its requirement that “[s]eatbelts required by § 77.1710(i) shall be worn by the operator of mobileequipment required to be equipped with ROPS by § 77.403-1.” 

 

As with theother violation associated with this truck, the inspector marked an injuryoccurrence as ‘reasonably likely’ to occur, producing lost workdays orrestricted duty, although in his evaluation he stated that the “condition willcause and or contribute to an accident of a reasonably serious nature, when thedriver will receive fractures and lacerations, resulting in at least lostworkdays or restricted duty.” Petit at 9. 

 

Thus, twonoteworthy hazards were at play with the same truck, hazards which were notdivorced from one another. Both, at least by the view of the issuing inspector,were significant and substantial. To the Court, the distinguishing feature isthat the seatbelt violation only involved $296.00, while the railing violationwas assessed at $1,069.00. As the Court has remarked in numerous cases, it doesappear that the larger assessments are the ones most often subjected tosignificant penalty reductions, with the minimal penalties more often paid asassessed. Whether this frequent result is mere happenstance is unknown. 

** **

**Reasonable Inquiry is notPermitted**

 

Despite the Court’s analyses and expressedconcerns for Citation No. 9566748, 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.[2]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.[3]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**, Citation No.9566748 is **MODIFIED** as set forth above and Respondent AppalachianResource West Virginia, LLC, is **ORDERED** to pay the Secretary of Laborthe sum of **$511.00, as opposed to the initial total proposed penalty of$1,365.00,**within 30 days of this decision.[4]

 

 

 

 

/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

 

 

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

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

 

----

[1]In *Mechanicsville*, 18 FMSHRC 877, (June 1996), the Commission heldthat it agreed “with the Secretary that the judge erred in determining on hisown initiative that the violation was S&S. ... [Referring to another of itsdecisions the] Commission reasoned that the modification was not appropriatebecause the judge *added new findings* to create a section 104(b)order. *...* Here, the judge similarly erred by adding a newfinding and conclusion, i.e., that the violation posed a hazard to employeesthat was reasonably likely to result in a reasonably serious injury andwas therefore S&S.” *Id.*at *879-880.*(citations omitted).

 

[2]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.

 

[3]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 2 (emphasisadded). Such boilerplate claims are almost always hollow, in view of the actualmodifications and penalty reductions that makeup these motions.

 

4 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.