**FEDERAL MINE SAFETY ANDHEALTH REVIEW COMMISSION**

Office ofAdministrative Law Judges

1331 PennsylvaniaAvenue, N.W., Suite 520N

Washington, DC 20004

Office: (202) 434-9933/ Fax: (202) 434-9949

 

 

 
| SECRETARY  OF LABOR

 MINE  SAFETY AND HEALTH        

 ADMINISTRATION  (MSHA),

                          Petitioner

 

                        v.

 

GREENBRIER MINERALS, LLC,

                          Respondent                                                                                   |   |   | CIVIL  PENALTY PROCEEDING

 

Docket  No. WEVA 2023-0036

A.C. No.  46-02140-563930

 

 

 

 

Mine: Saunders Preparation Plant |
|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|---------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

**DECISION APPROVING SETTLEMENT**

 

Before: JudgeWilliam 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 CLR has filed a motion toapprove settlement. The originally assessed amount was $1,189.00 and the proposedsettlement is for $878.00.

 
| **Citation/Order** | **MSHA’s Proposed  Penalty**   | **Settlement Amount** | **Other modifications to  citation/order**                                  |
|--------------------|---------------------------------|-----------------------|------------------------------------------------------------------------------|
| 9567361            | $626.00                         | $626.00               |                                                                         |
| 9567358            | $563.00                         | $252.00               | Modify to low  negligence; **55% (fifty-five percent)**reduction in penalty |
| **TOTAL**          | **$1,189.00**                   | **$878.00**           | ** **                                                                   |

 

 

This Motion to Approve Settlementinvolves two violations of 30 C.F.R. § 77.1605(a); both were regularlyassessed, with one paid in full, and the other with a 55% reduction. The standardpertains to loading and haulage equipment, and its requirements can aptly bedescribed as ‘clear as glass,’ because it requires that “[c]ab windows shall beof safety glass or equivalent, *in good condition* and shall be keptclean.” (emphasis added).

 

**CitationNo. 9567358;****thecitation with the 55% reduction in the penalty**.

 

 Here, the issuing MSHA inspector,Curtiss Vance III, diligently noted: 

 

“[t]he following window*s* onthe Dl0R Caterpillar Dozer Co. No. 472 were not in good condition:

1.         The left side doorwindow was not in good condition. The window was scratched on the outside anddirty in between the outer glass and inner glass.

2.         The right side doorwindow was not in good condition. The window was scratched on the outside anddirty in between the outer glass and inner glass.

3.         The front window was notin good condition. The window was scratched on the outside and dirty in betweenthe outer glass and inner glass.

4.         The rear window was notin good condition. The window was scratched on the outside and dirty in betweenthe outer glass and inner glass.

5.         The side windows werenot in good condition. The window was scratched on the outside and dirty inbetween the outer glass and inner glass.

This dozer was being operated onthe Coal Stockpile Area pushing to a underground feeder. Cab windows shall beof safety glass or equivalent, in good condition and shall be kept clean.”

 

Petitionfor Civil Penalty at 6

 

The Secretary requests Citation No.9567358 be modified to Low negligence. The Respondent would argue that thewindow glass in the Caterpillar Dozer Co. **No. 472** had been replaced inthe past. The *window* glass had not been reported to be damaged on thepre-operational checks. The mine management was not aware of the condition atthe time of the inspection. Motion at 3 (emphasis added).

 

**Citation No****956736; the citation paid infull.**

 

 This citation, whichwas issued by the same inspector and cited the same standard, 30 C.F.R. § 77.1605(a),differed in that it involved a different piece of equipment, but it was anotherD10R Caterpillar Dozer, **No. 031**. Otherwise, theviolation is virtually indistinguishable from Citation No. 9567358, described above.

 

The condition or practice sectionof the citation informed:

 

The following windows on the DlORCaterpillar Dozer Co. No. 031 were not in good condition:

1.         The left side doorwindow was not in good condition. The window was scratched on the outside anddirty in between the outer glass and inner glass.

2.         The right side doorwindow was not in good condition. The window was scratched on the outside anddirty in between the outer glass and inner glass.

3.         The front window was notin good condition. The window was scratched on the outside and dirty in betweenthe outer glass and inner glass.

4.         The rear window was not ingood condition. The window was scratched on the outside and dirty in betweenthe outer glass and inner glass.

 

This dozer is operated on the CoalStockpile Area, pushing to a underground feeder. Cab windows shall be of safetyglass or equivalent, in good condition and shall be kept clean. 

 

Petitionfor civil penalty at 8.

 

**Analysis**

** **

****To put it directly, thejustification in this motion does not add up. As****noted, these two, now-admitted,violations are virtually indistinguishable. *The two citations were issued bythe same inspector, on the same day, and within an hour of each other. Bothpieces of equipment were the same: D10R Caterpillar Dozers, and they were beingoperated in the same area – the Coal Stockpile Area – and doing the same task –pushing material to an underground feeder.*

* *

**Citation No. 9567361, the one paidas regularly assessed, differs from Citation No. 9567358, the one with a 55%penalty reduction, only in that No. 9567361 was assessed at $63.00 more. To beclear, the inspector evaluated both violations the same – listing the likelihoodof injury as ‘reasonably likely,’ resulting in lost workdays or restrictedduty, with both denoted as ‘significant and substantial,’ and the negligence asmoderate. In fact, of the two, Citation No. 9567361, is less egregious as it listed*four* distinct window locations on the equipment that were not in goodcondition, whereas Citation No. 9567358 listed *five* distinct window locationsthat were not in good condition. The difference for No. 9567361 is that theoperator failed in compliance after the citation was issued to the point that a(b) order had to be issued for failing to demonstrate ‘good faith’ in achievingrapid compliance. 

 

            TheSecretary makes matters worse with her position that she need not disclose the (b) order itself for the Commission to view, hiding the salient information fromthe Commission, all miners, and the public. One would have anticipated that theSecretary, whose obligation is to protect the safety and health of miners, notmine operators, would be at forefront on this issue, *insisting on disclosureof the (b) order*, not blocking it from view. That strident approach, blockingaffected persons and entities from seeing the entire record, is inimical to theSecretary’s role. The Court would have rejected the Secretary’s motion for thisdeficiency alone but for the fact that its non-disclosure stance for (b) ordersis before the Commission presently in another docket. 

 

            Asnoted, compounding this unjustified basis for the more than 50% penalty reductionin Citation No. 9567358 is that the affected dozer had “not good condition” issueswith *five* distinct areas: the left side door window, the right side doorwindow, the front window, the rear window and the side windows. And, make nomistake about it, this dozer is a large machine, weighing 144,190 lbs, with a lengthof more than 25 feet and a height at 13.5 feet.[1]These dimensions underscore the safety importance of all windows beingmaintained in good condition. 

 

            Exceptfor the significant fact that the five identified safety deficiencies are notfunny, the excuses offered in the motion for the large penalty reduction wouldbe laughable. This is so because asserting that the glass had been replaced inthe past counts for nothing in any penalty analysis. Further, the claim thatthe window glass had not been reported to be damaged on the pre-operationalchecks and that excuses mine management, shows only that a citation for failureto conduct genuine pre-op checks may have been in order. Inspectors shouldconsider such citations when confronted with such claims. With *every*window deficient, a claim of operator ignorance cannot be deemed credible. Additionally,the idea that such excuses constitute “*considerable* mitigating circumstances,”the Part 100 requirement for “low negligence,”[2]would mean that nearly all violations could qualify under such a reviewstandard. 

 

            Itis this Court’s view that unsupported reductions in proposed regular assessmentssuch as this run counter to the Mine Act’s purposes. Congress expressed that penaltiesare to be of sufficient magnitude, i.e. “cost,” to make compliance with the safetyand health standards preferable to non-compliance. Results such as these, withthe citation identifying more deficiencies, involving the same bulldozer model,doing the same work at the same time, and in the same location, but costing farless, gives the appearance of an unwarranted discount in the penalty, asopposed to valid justifications for penalty reductions.             

 

            Despitethe many concerns expressed, the Court is presently precluded from makingreasonable inquiry when presented with settlement motions. 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. 

 

            Accordingly,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.

 

** **

**WHEREFORE**, the motion for approval ofsettlement is **GRANTED**. Citation No. 9567358 is modified to lownegligence, with the penalty reduced to $252.00 for that violation. It isfurther**ORDERED** that the operator pay the penalty of **$878.00**within 30 days of this order.[3] Upon receiptof payment, this case is **DISMISSED**.

 

 

 

 

/s/William B. Moran

                                                                                    WilliamB. Moran

                                                                                    AdministrativeLaw Judge

 

 

Distribution:

 

Norman C.Ridley, Conference and Litigation Representative, U.S. Department of Labor,MSHA, 178 Thorn Hill Road, Suite 100, Warrendale, PA 15086. 

ridley.norman@dol.gov

 

Lorna M. Waddell, DINSMORE& SHOHL LLP, 215 Don Knotts Blvd., Suite 310, Morgantown, WV 26501. lorna.waddell@dinsmore.com

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[1]https://www.ritchiespecs.com/model/caterpillar-d10r-crawler-tractor

[2]30 C.F.R. §100.3, andTable X.

[3] 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. Please includeDocket and A.C. Numbers. It is vital to include Docket and A.C. Numbers whenremitting payments.