**FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION**

OFFICE OF THE CHIEFADMINISTRATIVE LAW JUDGE

1331 PENNSYLVANIA AVE.,N.W., 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.

 

 

 

JUSTICE ENERGY COMPANY,  INC., 

                        Respondent                                                                      |   |   | CIVIL PENALTY PROCEEDING

 

Docket No. WEVA 2023-0148

A.C. No. 46-03404-569444

 

 

 

 

 

Mine: No. 32  

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

 

**DECISIONAPPROVING SETTLEMENT**

 

Before: JudgeWilliam B. Moran

 

          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Conference and Litigation Representative, (“CLR”), has filed a Motion toApprove Settlement. The originally assessed amount for the citations at issuewas $4,081.00 and the proposed settlement amount is $3,061.00. The proposedsettlement terms are reflected in the following table: 

 

 
| **Citation  No.**              | **Originally  Proposed Assessment** | **Settlement  Amount** | **Modification**                                                               |
|---------------------------------|--------------------------------------|-------------------------|--------------------------------------------------------------------------------|
| **Docket  No. WEVA 2023-0148** |
| **9569727**                     | **$987.00**                          | **$732.00**             | **26% Penalty Reduction**                                                      |
| **9569728**                     | **$987.00**                          | **$732.00**             | **26% Penalty Reduction**                                                      |
| **9569730**                     | **$133.00**                          | **$133.00**             | **Sustained as Issued; minimum  penalty assessed**                            |
| **9569731**                     | **$987.00**                          | **$732.00**             | **26% Penalty Reduction**                                                      |
| **9569732**                     | **$987.00**                          | **$732.00**             | **26% Penalty Reduction**                                                      |
| **TOTAL**                       | **$4,081.00**                        | **$3,061.00**           | **Overall: 25% reduction in total  penalty under regular assessment formula** |

 

 

 

**Analysis**

** **

            Although the overall penalty reductions aremoderate for this docket, several disconcerting aspects stand out. For each ofthe citations in this docket, save the one citation assessed at the minimumpenalty, the basis for the reductions is that the injury would not result inmore than lost workdays or restricted duty. Motion at 3-4.  However, examiningthe four citations, the now-admitted violations represent serious and extensiveconditions, all as found by the issuing MSHA Inspector, Aaron D. Cline, whodiligently recorded the conditions and practices he discovered. 

 

            As reflected here, citing 30 C.F.R. § 77.404(a),[1]thetext of Inspector Cline’s demonstrates the significant hazards he found:

 

**Citation No.****9569727**providesthe following unchallenged facts of the unsafe truck: 

 

The CAT 785C rock truck #521 is not being maintained in safeoperating condition. When checked, the following deficiencies exist:

 

1.       door seal is damaged

2.       cab filter is missing

**3.       ****handrail in front of cab broke**

**4.       ****off-side step top rung bent and steps bent into bumpercausing no toe clearance**

**5.       ****oil hose on off-side front brake leaking**

6.       oil leak inside offside rear wheel

**7.       ****emergency steering does not work**

            The operator removed the truck from serviceuntil all repairs are made.

 

Petition for civil penalty at 9.

 

Seven defects constitute a large number and items 3 through 5and 7 are particularly worrisome.

 

**Citation No. 9569728**

 

            This admitted violation has the effect, incontext, of making the serious defects identified in Citation No. 9569727 muchworse. Th issuing MSHA Inspector, to his great credit, performed due diligence inciting the operator, per 30 C.F.R. § 77.1606 (a),[2] with a failure to perform alegitimate     pre-operational check for the truck cited in Citation No. 9569727,above, noting:

 

            TheCAT 785C rock truck #521 has not been provided an adequate 

            pre-operationalcheck **on either shift**. When checked, citation 9569727 was issued withnumerous deficiencies and **no defects were listed on the pre-ops except thecab filter.**

** **

Petitionfor civil penalty at 10 (emphasis added). 

 

                                    Insettlement motions, the Court has seen a rise as a defense**in suchmotions that there was no citation for failure to perform a pre-check forequipment defects. To address such claims, the Court has stated that inspectorsshould evaluate whether there has been genuine pre-check for defects affectingsafety, something Inspector Cline, to his credit, evaluated here, finding anabnegation by the operator of its duties to comply with the pre-shift examrequirement. 

 

**As described below, those two, inextricably related,citations were not the end of the matter.**

 

**Citation No. 9569731**

 

            Essentially the twin violations problemspresented themselves again within the same inspection; that is to say, theinspector found multiple unsafe conditions on yet another truck and these hazardswere also coupled with inadequate pre-operational checks.  

 

            This was a gross deficiency, far exceeding the 7deficiencies found for Citation No. 9569727, as Citation, Citation No. 9569731was considerably worse. Citing the same standard violated in Citation No.9569727, this time Inspector Cline found **19 (nineteen) defects presentingunsafe conditions**. The citation provided the following unchallenged factsof the unsafe truck:

 

The Maroon Mack Lube truck #0009 is not being maintained insafe operating condition. When checked, the following deficiencies exist:

 

1.         Door seal driver side damaged

2.         Door seal passenger side damaged

**3.         ****inside door handles don't work inside cab both doors**

4.         **no passenger seat, wooden box is in place of seat, no bucklefor seat belt**

**5.         ****hood latch broke**

**6.         ****hood handle gone**

7.         oil leak on motor

8.         ball stud has excessive slack on off side tie rod end

9.         air dryer not working and leaking

10.     green antifreeze tank ratchet strapped not bolted down

**11.     ****no valve to shut air line off that must be changed fromantifreeze to grease tanks, blows air out on operator**

12.     12.  jake brake is weak

13.     13.  shock missing on off side front

14.     14.  oil covering walkway in bed

15.     15.  oil covering hose bay

16.     16.  2 lights out on rear

17.     17.  ladder to top of truck no toe clearance

**18.     **18.  **no handrail on top of tank and no antiskid material**

19.     **All 6 brakes are out of adjustment**.

 

The operator removed the truck from service until allrepairs are made. Standard 77.404(a) was cited 12 times in two years at mine4603404 (12 to the operator, 0 to a contractor).

 

Petition for a civil penalty at 12-13 (emphasis added).

 

            Here too, in the diligent performance of hisinspection responsibilities, Inspector Cline issued Citation No. 9569732, withhis unchallenged statement that:

 

The maroon mack lubetruck #0009 has not been provided an adequate pre-operational check on eithershift.    When checked, ***no* deficiencies were listed** on the preops and citation 9569731 was issued listing 17[3]deficiencies on the truck.

Standard 77.1606(a)was cited 2 times in two years at mine 4603404 (2 to the operator,        0 to acontractor).

 

Petition forCivil Penalty at 14. (emphasis added).

 

            In the Court’s view, the motion is appalling,both because of the large number of hazards found on the two trucks and thedereliction of duties by the operator in not performing a legitimate precheck. TheRespondent provides the same, empty, rationale to support the across-the-board26% reductions for each of these four conceded violations. 

 

            The Respondent offers the *same* empty languagefor *each* of four admitted violations: 

 

**In the unlikely event of a mineaccident, the listed conditions would not result in more than a lost workdaysor restricted duty injury**.

 

 Motion at 3-4. (emphasis added).

 

            There is no substance to back up the bald claim;only the assertion is made.

 

            The Secretary, acting through Conference andLitigation Representative David Trent, in like fashion, has an equally hollowresponse *for each*, stating: 

 

The 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,

 

*Id.* (emphasis added).

 

            Despite its statutory role to protect miners,the Secretary does not inform if he/she consulted with the issuing inspector,who saw the admitted violations, for his take on the ‘lost workday, restrictedduty’ claims. Further, for the Secretary to make no distinction between thenumerous defects and the arguably more serious violation of not performing anhonest pre-operational check, weakens the importance of the latter, and is adisservice to miners. Such a response is inimical to the Secretary’s safety andhealth duties. 

** **

**Reasonable Inquiry by the Court is not Permitted**

 

            It is obvious that for egregious violations suchas these, the Court would have questions aplenty. However, Reasonable Inquiry about the contentions advanced insettlement motions is not Permitted

 

            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) 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).

 

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**. With significantmisgivings, the penalties are reduced, per the summary table above, and thosefour reduced penalties are modified to provide that the injury or illnessreasonably to be expected is downgraded from ‘fatal’ for each to ‘lost workdaysor restricted duty.’ The****Respondent is **ORDERED****to pay**a penalty of **$3,061.00** within 30 days of this order.[5]Upon receipt of payment, this case is **DISMISSED**.

 

 

 

 

/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

 

Scott Wickline, Esq., Hardy Pence, PLLC, 10 Hale Street, 4thFloor

P.O. Box 2548, Charleston, WV 25329 scott@hardypence.com

----

[1]**30 C.F.R. §****77.404 Machinery and equipment; operation andmaintenance. (a)** 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.

 

[2]**30 C.F.R.§ § 77.1606 Loading and haulage equipment; inspection and maintenance.**

**(a)** Mobileloading and haulage equipment shall be inspected by a competent person beforesuch equipment is placed in operation. Equipment defects affecting safety shallbe recorded and reported to the mine operator.

 

[3]The reference to17 deficiencies appears to be a typographical error, as Inspector Cline listed19, not 17, separate safety deficiencies in Citation No. 9569731. 

[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.