**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, 

UNITED STATES DEPARTMENT OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION  (MSHA),

   Petitioner

 

v.

 
IRON CUMBERLAND,  LLC,
                           Respondent                            |  

 

 

  |  

  |  

CIVIL PENALTY PROCEEDING

 

Docket No. PENN 2022-0084

A.C. No. 36-05018-555460

 

 

 

 

Mine: Cumberland Mine

 

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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. Two section 104(d)(2) orders are involved, both of whichwere specially assessed. The Secretary has filed the Motion to Approve Settlementof the orders. As set forth in the table below, the Motion seeks to reducethe penalties, resulting in an overall reduction of **$31,862.00** for thisdocket. The parties move to reduce the penalty assessed for the orders, asstated below. 

 
| **Order** | **MSHA’s Proposed Penalty**   | **Settlement Amount** | **Other modifications to order**         |
|-----------|-------------------------------|-----------------------|------------------------------------------|
| 9257780   | $21,100.00                    | $14,172.00            | Penalty reduction of 33%                 |
| 9257810   | $59,100.00                    | $34,166.00            | Penalty reduction of 42%                 |
| **Total** | **$80,200.00**                | **$48,338.00**        | **Total penalty reduction of 40% ** |

** **

****Both 104(d)(2)orders are associated with 104(d)(1) Order No. 9253174. That (d)(1) order was settled as part of the docket PENN2022-0014. Decision Approving Settlement, PENN 2022-0014, May 26, 2022. Therelevant underlying order was Order No. 9253174, for which the Motion sought a62% reduction in the penalty.

 

**Background**

 

This following background is beingpresented to preserve the relevant historical record regarding the CumberlandMine’s recent violation history for violations of 30 C.F.R. § 75.400.

**TheJune 2021 Violation of 30 C.F.R. § 75.400**

** **

Asreflected in Docket No. PENN 2022-0014, Order No. **9253174**was issued onJune 17, 2021 as a Section 104(d)(1) Order, for violation of 30 C.F.R. §75.400. Titled “Accumulation of combustiblematerials,” this standard requires that “Coal dust, including float coal dustdeposited on rock-dusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not bepermitted to accumulate in active workings, or on diesel-powered andelectric equipment therein.” 30 C.F.R. § 75.400. The citation was regularlyassessed at $6,494.00 and was not given the 10% good faith reduction. Via theSecretary’s Motion to Approve Settlement, at the end of the day, for thisadmitted violation, the Secretary agreed to modify the likelihood of injuryfrom “reasonably likely” to “unlikely.” That change altered the violation to non-S&S,with the consequence that the operator paid the *minimum* penalty for aSection 104(d)(1) order from $6,494.00 down to $2,493.00, a sixty-two percent (**62%**) reduction. **To the Court at least, it is noteworthy that as of June17, 2021, the mine operator had been cited fifty-seven (57) times forviolations of 30 C.F.R. § 75.400. Within just that docket, five (5) of theeleven (11) citations involved violations of that standard. All of theviolations were (d) orders**

 

Theorder read:

 

The operator allowedaccumulations of combustible materials to exist in the following locations andin various forms on the 75 Headgate development section (MMU 002) [Area orEquipment impacted: from the Tailpiece inby in all 3 entries].

 

1 - Accumulations offloat coal dust, dark grey to black in color has been deposited on the mineroof and ribs from 22 1/2 block to 25 block in the number 3 entry, which is theReturn. These accumulations were approximately 1/16 of an inch in depth. 

 

2 - Accumulations ofloose coal and coal fines were found in the number 2 entry at 25 3⁄4 block, alongthe left rib. These accumulations measured up to 40 feet in length, 25 inchesin depth and 28 inches in width.

 

3 - Accumulations ofloose coal and coal fines were found just inby the 26 block crosscut in thenumber 2 entry face area that measured 20 feet in width, 14 feet in length andup to 4 feet in depth.

 

4 - Accumulations offloat coal dust, black in color were found to be deposited on both ribs in thenumber 1 entry from just inby the 24 block crosscut to 25 3/4 block. 

 

5- There was 21 cardboard boxes (roof bolt resin boxes) found to be piled upalong the solid rib at the 26 block crosscut in the number 1 entry.

 

The [conditions]were obvious and extensive and should have been evident to even a casualobserver, much less a certified person. If these conditions were leftunnoticed, and therefore uncorrected, and normal mining operations were tocontinue, it would be reasonably likely that an accident would occur due to theexposure to the conditions. Also, a confluence of factors exists as there wasalso a citation issued for 24 cutting bits being excessively worn (completelymissing carbide tips or more) and 4 cutting bits being completely missing onthe company number 1022 Continuous Mining Machine.

 

Standard 75.400 wascited 57 times in two years at mine 3605018 (57 to the operator, 0 to acontractor). This violation is an unwarrantable failure to comply with amandatory standard.

 

Petitionfor a Civil Penalty at 11-12.

 

The gravity of the violation wasfound to be “reasonably likely,” and could reasonably be expected to result in“lost workdays or restricted duty,” affecting one person. *Id*. at 11. Theviolation was found to be significant and substantial. *Id*. Negligence wasassessed as “high.” *Id*. The order was terminated on June 19, 2021 withthe justification that “The operator has removed all accumulations from thecited areas and rockdusted the entire section with a scoop mounted flingerduster.” *Id*. at 13.

 

In support of the proposedmodification, the Secretary offers the following:

 

Order No.9253174 is a Section 104(d)(1) order for the accumulation of combustiblematerialsinfivelocationsonthe75Headgatedevelopmentsection in violation of 30 C.F.R. § 75.400.MSHA determined that the violation wasreasonably likely to cause an injury resulting in lost workdays and restrictedduty, and was therefore significant and substantial, that it affected oneperson, and that the operator exhibited a high degree of negligence.MSHA assessed a penalty of $6,494.00.

 

The inspector referenced worn cutting bits on thecontinuous mining machine as an ignition source for the cited materials.The Respondent contends that the materialin the first area mentioned, which MSHA cited for accumulations of float coaldust on the mine roof and ribs in the No. 3 entry, was rather a mixture of coaland rock dust of unknown combustiblecontent.TheRespondentfurthercontendsthatthisaffectedareawaslocated outby the last open crosscutapproximately 200 feet from the working face and therefore removed from thereferenced ignition source.Thesecond area mentioned, which MSHA cited for accumulations of loose coal andcoal fines in the No. 2 entry, the Respondent contendsconsistedofextremelywetmaterialthatresultedfromribsloughage,whichwas alsolocated outby the last open crosscut away from the referenced ignition source.The Respondent contends that the materialin the third area, which MSHA cited for coal accumulations inby the last opencrosscut at the working face of the No. 2 entry, were containedinamudhole,fullysaturatedwithwater,andthereforewouldnotcontributeto an explosion or fire.Thematerial in the fourth area, which MSHA cited for float coal dust in the No. 1entry, was, argues the Respondent, in the intake air course and did not extendup to the working face and therefore was not near the referenced ignitionsource. Finally, the fifth area, which MSHA cited for the placement ofcardboard boxes adjacent to the last open crosscut in the No. 1 entry, wouldnot have been readily ignited by the referencedignitionsource,andwereawaitingimmediateremovalpriortotheresumptionof mining in the No. 1 entry.Inconsideration of this and the risks inherent in litigation, the Secretaryagrees to modify the likelihood of injury from“reasonably likely” to “unlikely”, which changes the order to non-S&S, andreduces the penalty to $2,493.00, the minimum for a Section 104(d)(1) order.

 

Motion to Approve Settlement at 3-5.

 

**Per the Secretary’s custom the motion did not inform whether heconsulted with the issuing inspector regarding the mine operator’s assertionsfor any of the five areas cited in the Order.**

 

            As the Court noted in itsreview of this citation: 

 

Atthe outset it is important to note that the inspector identified five (5)distinct areas of accumulations of combustible materials in this highly gassymine. Two of these involved accumulations of float coal dust, with one locationdescribing them as dark grey to black and the other as black. Two other,separate, areas involved accumulations of loose coal and coal fines. The fiftharea, also in a distinct location, involved 21 cardboard boxes. Cardboard is combustiblematerial. As the inspector stated and the information in his Order reflects,the conditions were obvious and extensive and should have been evident to evena casual observer, much less a certified person. 

 

The issuinginspector also applied the correct Commission test for these multipleaccumulations, namely that assuming continuation of normal mining operations,he found that it would be reasonably likely that an accident would occur due tothe exposure to the conditions. 

 

Though not a requirementto support his evaluation, the inspector also stated that there was aconfluence of factors existing as there was also a citation issued for 24cutting bits being excessively worn (completely missing carbide tips or more)and 4 cutting bits being completely missing on the company number 1022Continuous Mining Machine. This appears to be a reference to Citation No.9253300, which describes such worn or missing bits on the 1022 ContinuousMining Machine. PENN 2021-0112 Pet. for a Civil Penalty at 12.

 

 

            Further,the operator was no stranger to the accumulation of combustible materialsstandard, 30 C.F.R. § 75.400, with it being cited 57 (fifty-seven) times in twoyears at mine.

 

Inthe context of these five distinct areas of combustible accumulations and itsvery frequent occurrence, Respondent makes, as it must, various arguments in anattempt to show that the likelihood of an injury occurring was unlikely. Thesecontentions have been set forth above and need not be repeated here. A talltask, the Respondent tries to diminish the seriousness of each of five distinctareas with various claims. They consist of various claims – that thecombustible accumulations were some distances from the working face or wereotherwise located so as to diminish the likelihood of occurrence or, anirrelevant consideration, the inspector didn’t analyze the combustible contentof the coal dust, which is not a requirement to establish a violation, or theywere wet or, in the case of the 21 boxes, they were awaiting immediate removalbefore mining resumed. However, at some point, the array of accumulations andthe operator’s habitually being cited for such accumulations cannot beexplained away. It is noteworthy, that per its motion, the Secretary recountsthe claims without comment. 

 

Someadditional comments about the Respondent’s claims that it is unlikely for aninjury to occur are in order.  

 

Severalof these arguments, as detailed below, assert evidence not observed by theinspector in the initial inspection giving rise to the order and the Secretarydoes not inform whether it presented the Respondent’s claims to the issuinginspector, who diligently detailed the conditions and extent of the five areashe identified in his order, areas, as noted above, that he remarked “wereobvious and extensive and should have been evident to even a casual observer.” 

 

Asto the first of the five identified areas, the inspector observed that thematerial was dark grey to black in color, indicative that it the accumulations werenot some innocuous combination of coal dust and rock dust and the float coaldust accumulation was substantial, extending over the length of 2.5 blocks. 

 

For the secondarea, Respondent contends that the accumulated material was extremely wetmaterial from rib sloughage. Here again, the Motion does not inform if theSecretary made inquiry, in support of the inspector’s detailed recounting ofthe conditions he found, if he inquired about this claim. What the Court doesknow, from the text of the order itself, is that the loose coal and coal finesaccumulation was significant, 40 feet long, 25 inches deep, and 28 inches wide;and that the Respondent does not dispute this.

 

 

 

            Thesame can be said for the third area, where Respondent contends the material waslocated in a mud hole, fully saturated with water, and therefore unlikely toignite. One can only hope that, if the Secretary intends to encourage MSHAinspectors in their efforts to detail hazards, that the courtesy of presentingthese claims to the issuing inspector was made. As with the first location,what the Court does know is that the accumulation of material was significant –20 feet wide, 14 feet long, and up to 4 feet in depth.

 

Forthe first, second, fourth, and fifth areas, Respondent claims the identifiedcombustible material in question – accumulated lose coal and coal fines, floatcoal dust, or cardboard boxes – was too far away from the working face. Thiscontention ignores the plain language of the standard, which requires thatcombustible materials shall be cleaned up and not be permitted to accumulate inactive workings. The accumulations cited by the inspector were all in activeworkings.  Active workings” is defined in 30 C.F.R. § 75.2 as “[a]ny place in acoal mine where miners are normally required to work or travel. 

 

Decision Approving Settlement May26, 2022 at 6-8.

 

 

**December 2021**

 

**The 104(d)(2) Orders *for thismatter*, Docket No. PENN 2022-0084**

** **

            Order No. 9257780 wasissued on December 20, 2021, for a violation of 30 C.F.R. § 75.400. Titled“Accumulation of combustible materials,” the standard specifies that 

 

 

Coal dust,including float coal dust deposited on rock-dusted surfaces, loose coal, andother combustible materials, shall be cleaned up and not be permitted toaccumulate in active workings, or on diesel-powered and electric equipmenttherein.

 

30 C.F.R. § 75.400.

 

            The order read:

 

Coal dust,including float coal dust deposited on rock-dusted surfaces, loose coal, andother combustible materials, shall be cleaned up and not be permitted toaccumulate in active workings. On the 6 Mains West #1 Belt accumulations ofcombustible material in the form of coal, coal fines and float coal dust hasbeen allowed to exist at the following locations: 

1.)           11 Mains West transfer (11 block), coal accumulations in the form ofcoal and coal fines is present on the off side of the transfer measuring 12inches wide by 12 foot long and 4 feet to 16 inches in depth. In addition thereis coal fines present in the walkway measuring 3 feet wide by 15 feet long and2 to 4 inches in depth.

2.)           12 1⁄4 block, coal accumulations in the form of loose coal and coal finesis present in contact with a turning bottom roller creating frictional heat. Smokewas being imitted from the accumulations. The accumulations measured 40 incheslong by 24 inches wide and 10 inches deep.

3.)           15 1⁄4 block, coal accumulations in the form of loose coal and coal finesis present in contact with a turning bottom roller. The accumulations measured32 inches long by 24 inches wide and 12 inches deep.

4.)           15 1⁄2 block, coal accumulaions in the form of loose coal and coal finesis present in contact with a turning bottom roller. The accumulations measured32 inches long by 22 inches wide and 8 inches deep.

5.)           15 1⁄2 block, coal accumulations in the form of loose coal and coal finesis present in contact with a turning bottom roller. The accumulations measured48 inches long by 26 inches wide and 10 inches deep.

6.)           15 3⁄4 block, coal accumulations in the form of loose coal and coal finesis present in contact with a turning bottom roller. The accumulations measured32 inches long by 24 inches wide and 10 inches deep.

7.)           15 3⁄4 block, coal accumulatios in the form of loose coal and coal finesis present in contact with a turning bottom roller. The accumulations measured40 inches long by 20 inches wide and 10 inches deep.

8.)           16 1⁄2 block, coal accumulations in the form of loose coal and coal finesis present in contact with a turning bottom roller. The accumulations measured30 inches long by 20 inches wide and 8 inches deep.

9.)           11 to 17 block, coal accumulations in the form of coal float dust ispresent on mine floor, roof, ribs, structure and water pipe. The accumulationsmeasured approximately 1200 feet and 16 feet wide.

10.)   11 to 17block, coal accumulations in the form of loose coal and coal fines is presenton the offside of the belt under every bottom roller.

 

Standard 75.400was cited 71 times in two years at mine 3605018 (71 to the operator, 0 to acontractor). This violation is an unwarrantable failure to comply with amandatory standard.

 

Petitionfor a Civil Penalty at 10-11.

 

            For gravity, likelihoodof injury was found to be “reasonably likely,” and injury could reasonably beexpected to result in “lost workdays or restricted duty”[1]affecting one person. *Id*. at 10. The violation was found to besignificant and substantial. *Id*. Negligence was found to be “high.” *Id*.

 

The order wasterminated on December 20, 2021, when “Seven Hourlyminers, two supervisors and three rock dusters worked to correct conditions for3 hours for total of **36 man hours to remove[] all accumulations and rockdust the area**. All conditions have been corrected.” *Id*. at 10(emphasis added). 

** **

** **

**OrderNo. 92457810**

 

OrderNo. 92457810 was issued on January 19, 2022, for a violation of 30 C.F.R.§ 75.400, “Accumulation of combustible materials,” *supra*.

 

            The order read:

 

Accumulation of combustible materials. Coal dust, includingfloat coal dust deposited on rock-dusted surfaces, loose coal, and othercombustible materials, shall be cleaned up and not be permitted to accumulatein active workings. On the 6 Mains West #1 belt there is accumulations presentat the following locations on previous rock dusted surfaces:

1.)  6 Mains West #2 Transfer at 35 block,there is accumulations present in the form of loose coal and coal fines incontact with a bottom roller. The accumulations measured 72 inches long by 32inches wide and 14 inches deep.

2.)  34 to 28 block on the offside of belt,there is accumulations present in the form of coal dust on previous rock dustedsurfaces on the mine roof, mine floor, mine ribs, belt structure and waterline. The accumulations measured 8 foot wide by 1500 feet long.

3.)  32 block, there is accumulations presentin the form of loose coal, coal fines, and coal dust in contact with a bottomroller. The accumulations measured 2 foot long by 4 foot wide and 10 inchesdeep.

4.)  31 1⁄2 block, there is accumulationspresent in the form of loose coal, coal fines, and coal dust in contact with abottom roller. The accumulations measured 2 foot long by 3 foot wide and 10inches deep.

5.)  26 to 23 block on the off side of thebelt, there is accumulations present in the form of coal dust on previous rockdusted surfaces on the mine roof, mine floor, mine ribs, belt structure andwater line. The accumulations measured 8 foot wide by 750 feet long.

6.)  22 1⁄2 to 20 1⁄2 block on the off side ofthe belt, there is accumulations present in the form of coal dust on previousrock dusted surfaces on the mine roof, mine floor, mine ribs, belt structureand water line. The accumulations measured 8 foot wide by 500 feet long.

7.)  20 1⁄2 block, there is accumulationspresent on the offside of the belt in the form of loose coal, coal fines andcoal dust. The accumulations measured 10 foot long by 32 inches wide and 16inches deep.

8.)  19 block, there is accumulationspresent in the form of loose coal and coal fines in contact with a bottomroller. The accumulations measured 2 foot long by 2 foot wide and 12 inchesdeep.

9.)  19 block, there is accumulationspresent in the form of loose coal and coal fines in contact with a bottomroller. The accumulations measured 2 foot long by 2 foot wide and 10 inchesdeep.

10.)   18 3⁄4 block, there is accumulationspresent in the form of loose coal and coal fines in contact with a bottomroller. The accumulations measured 4 foot long by 2 foot wide and 6 inchesdeep.

11.)   17 1⁄4 to 17 block, there isaccumulations present in the form of loose coal and coal fines on mine floor. Theaccumulations measured 20 foot long by 16 foot wide and 1 to 2 inches deep. Thereis also coal dust accumulations present on the mine floor, roof, ribs,structure and water line.

12.)   15 1⁄4 there is accumulations present inthe form of loose coal and coal fines in contact with a bottom roller. Theaccumulations measured 2 foot long by 3 foot wide and 12 inches deep.

13.)   14 3⁄4 there is accumulations present inthe form of loose coal and coal fines in contact with two bottom sets ofrollers. The accumulations measured 9 inches long by 1 foot wide and 16 inchesdeep and 6 inches long by 12 inches wide and 12 inches deep respectively.

14.)   11 to 11 1⁄2 bloc, there is accumulationspresent in the form of coal dust on previous rock dusted surfaces on the mineroof, mine floor, mine ribs, belt structure and water line. The accumulationsmeasured 16 foot wide by 125 feet long.

15.)   11 Mains transfer at 11 block, there isaccumulations present in the form of loose coal and coal fines in contact witha bottom roller. The accumulations measured 16 foot long by 72 inches wide and16 inches deep. The accumulations are in contact with the bottom belt of 6Mains West #1 belt and a bottom roller.

16.)   10 3⁄4 block, there is accumulationspresent in the form of loose coal and coal fines in contact with a bottomroller. The accumulations measured 24 inches long by 12 inches wide and 12inches deep.

17.)   8 1⁄2 block, there is accumulationspresent in the form of loose coal and coal fines in contact with a bottomroller. The accumulations measured 27 inches long by 30 inches wide and 8inches deep.

18.)   8 1⁄2 block, there is accumulationspresent in the form of loose coal and coal fines in contact with a bottomroller. The accumulations measured 48 inches long by 27 inches wide and 8inches deep.

19.)   6 3⁄4 block, there is accumulations presentin the form of loose coal and coal fines in contact with a bottom roller. Theaccumulations measured 42 inches long by 30 inches wide and 12 inches deep.

20.)   6 3⁄4 block, there is accumulationspresent in the form of loose coal and coal fines in contact with a bottomroller. The accumulations measured 6 foot long by 3 foot wide and 12 inchesdeep.

21.)   6 block Langley, there is accumulationspresent in the form of loose coal, coal fines and coal dust present. Theaccumulations measured 50 foot long by 16 foot wide and 2 to 3 inches deep.

22.)   6 Mains West #1 transfer, there isaccumulations present in the form of loose coal, coal fines, and coal dustpresent. The accumulations are in contact with the 79 North Mains belt. Theaccumulations measured 16 foot long by 8 foot wide and 12 inches deep.

23.)   79 North Mains tailpiece, There isaccumulations present in the form of loose coal, coal fines, and coal dustpresent. The accumulations are in contact with the 79 North Mains belt and tailroller. The accumulations measured 14 foot long by 24 inches wide and 14 to 16inches deep.

24.)   79 North Mains tailpiece off side,There is accumulations present in the form of loose coal, coal fines, and coaldust present. The accumulations are in contact with the 79 North Mains belt. Theaccumulations measured 6 foot long by 28 inches wide and 36 inches deep.

25.)   6 Mains West #1 belt transfer adjacentcrosscut inline with 6 Mains West Belt, There is accumulations present in theform of loose coal, coal fines, and coal dust. The accumulations measured 9foot long by 4 foot wide and 32 inches deep.

26.)   11 block to 6Mains West #1 Transfer, there is accumulations of coal dust present on theoffside of the belt. Accumulations are present on minefloor, roof, ribs, structure and water line on previous rock dusted surfaces. Theaccumulations measured 10 foot wide by 2750 feet long.

 

Standard 75.400 was cited 78 times in two years at mine3605018 (78 to the operator, 0 to a contractor). This violation is anunwarrantable failure to comply with a mandatory standard.

 

Petitionat 13-15.

 

Forgravity, likelihood of injury was found to be “reasonably likely,” and injurycould reasonably be expected to result in “lost workdays or restricted duty,”affecting eight persons. *Id*. at 13. The violation was found to be significantand substantial. *Id*. Negligence was found to be “high.” *Id*. Theorder was terminated on January 20, 2022, when 

 

The cited accumulations have been removed and adequatelyrock dusted. The cited conditions took approximately 10men per shift and 24 hours to correct for a total of 720 man hours.

 

*Id*. at 16.

 

Included with thePetition is a narrative supporting the special assessment. The narrative read:

000555460

AssessmentControl Number

 

**NarrativeFindings for a Special Assessment**

Civil monetary penalties for violations of the Federal Mine Safety and HealthAct of 1977 (the Mine Act) and mine safety and health standards are determinedusing the six criteria set forth in 30 C.F.R. Part 100. The Mine Safety and HealthAdministration (MSHA) may elect to waive the regular assessment formulacontained in § 100.3 if the conditions concerning the violation warrant aspecial assessment under § 100.5.

In December 2021and January 2022, MSHA issued two § 104(d)(2) Orders to Iron Cumberland LLC forviolations of 30 C.F.R. § 75.400 at the Cumberland Mine. MSHAinspectors observed extensive accumulations of combustible material on the 6Mains West #1 Belt, including loose coal, coal fines, and float coal dust. Thematerial was observed on the mine floor, roof, ribs and on equipment. Inmultiple places, the material was in contact with moving belt rollers, and inone location was warm to the touch and emitting smoke. These conditionsprovided fuel for a mine fire and could have resulted in serious injuries tomultiple miners.

MSHA isproposing special assessments under § 100.5 for these Orders because theyexhibited a high degree of negligence, presented significant risk of injury,and are part of an extensive history of accumulation violations at this mine.This indicates the need for greater deterrence than the regular assessmentpenalties would provide. Based on the six criteria set forth in § 100.3(a) andthe information available to the Office of Assessments, it is proposed thatIron Cumberland LLC be assessed the following civil penalties:

 

 

 

 

 
| § 104(d)(2)

Order  No.  | Condition  or Practice                                                                                                                                                                                                             | Proposed  Penalty |
|--------------------------------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------------------|
| 9257780                        | Accumulations were observed in  10 locations, measuring up to 1,200 feet long. In seven locations, the material  was in contact with bottom belt rollers, one of which was creating frictional  heat and emitting visible smoke, | $21,100            |
| 9257810                        | Accumulations were observed in  26 locations, on previously rock dusted surfaces, measuring up to 2,750 feet  long. In 18 locations, belt rollers were turning in accumulations.                                                  | $59,100            |

 

MSHA hascarefully evaluated the conditions cited, relevant information, and theinspector’s evaluation. The proposed penalty reflects MSHA’s appraisal of allthe facts presented. The attached proposed assessment includes the number ofpreviously assessed violations and the size of the mine and the company. Under§ 100.3(h), MSHA presumes that the operator’s ability to continue inbusiness will not be affected by the assessment of the civil penalties.

 

Petition at 7.

 

**The Secretary’s MonetaryConcessions for the two Section 104(d)(2) orders**

** **

**Order 9257780**

** **

The Secretary moves to reducethe assessed penalty for this citation, offering the following in support:

 

104(d)(2) Order 9257780 was issued for an alleged violation of§75.400. The Secretary has proposed a civil penalty of $21,100.00 for thisviolation. Gravity was evaluated as: Reasonably Likely, Lost Workdays orRestricted Duty, 1 Person Affected. Consequently, the violation was designatedas S&S. Negligence was evaluated as high and amounted to an unwarrantablefailure to adhere to the cited standard. Respondent argues that the speciallyassessed proposed penalty is excessive. As shown on the Special AssessmentNarrative Form in Exhibit A of the penalty petition, the special assessment wasderived by increasing the penalty points for likelihood, severity, andnegligence (including three unwarrantable failure points). However, were thematter to go to hearing, **Respondent would argue that thefacts and evidence would not support the high negligence or unwarrantablefailure findings. Specifically, Respondent would argue that the conditionscould have occurred or worsened over a short period of time due to the quantityand velocity of air on the belt and that the evidence would not prove that theconditions observed by the inspector were indicative of the conditions at thetime of the most recent examination.** In consideration of the facts, theavailable evidence, Respondent’s arguments, the risks inherent in litigationand Respondent’s agreement to accept the order as issued, the Secretary agreesto settle this matter by affirming the order as issued and agreeing to areduced penalty of $14,172.00. The regular assessment amount for the order asissued would have been $5,293.00 and, had the violation been cited as amoderate negligence 104(a) citation, the Part 100 penalty would have been$1,421.00. Thus, the agreed upon compromised amount of $14,172.00 is a fair andreasonable amount. 

 

Mot. toApprove Settlement at 3-4 (emphasis added).

 

**OrderNo. 92457810**

 

The Secretary moves to reducethe assessed penalty for this citation, offering the following in support:

 

104(d)(2) Order9257810 was issued for an alleged violation of §75.400. The Secretary hasproposed a civil penalty of $59,100.00 for this violation. Gravity wasevaluated as: Reasonably Likely, Lost Workdays or Restricted Duty, 8 PersonsAffected. Consequently, the violation was designated as S&S. Negligence wasevaluated as high and amounted to an unwarrantable failure to adhere to thecited standard. Respondent argues that the specially assessed proposed penaltyis excessive. As shown on the Special Assessment Narrative Form in Exhibit A ofthe penalty petition, the special assessment was derived by increasing thepenalty points for likelihood, severity, and negligence (including threeunwarrantable failure points). However, Respondent would argue at hearing that the high negligence and unwarrantable failure findings arenot supported. **Specifically, Respondent argues that miners were working onthe cited conditions when the order was issued and that the examination booksshow that corrective actions were being taken on an ongoing basis. Furthermore,because a large portion of the mine had recently been sealed, increased airvelocity on the belt caused coal fines to be blown off the belt and theconditions would change significantly over a short period of time**. Inconsideration of the facts, the available evidence, Respondent’s arguments, therisks inherent in litigation and Respondent’s agreement to accept the order asissued, the Secretary agrees to settle this matter by affirming the order asissued and agreeing to a reduced penalty of $34,166.00. The regular assessmentamount for the order as issued would have been $14,172.00 and, had theviolation been cited as a moderate negligence 104(a) citation, the Part 100penalty would have been $4,268.00. Thus, the agreed upon compromised amount of$34,166.00 is a fair and reasonable amount. 

 

Motion at4-5 (emphasis added).

**Analysis**

** **

**The CumberlandMine has a compliance problem with 30 C.F.R. 75.400**. 

Titled“Accumulation of combustible materials,” this standard requires that “Coaldust, including float coal dust deposited on rock-dusted surfaces, loose coal,and other combustible materials, shall be cleaned up and not be permitted toaccumulate in active workings, or on diesel-powered and electric equipmenttherein.

 

**The 104(d)(2) Orders for this matter, Docket No. PENN2022-0084**

            Order No. 9257780 wasissued on December 20, 2021, for a violation of 30C.F.R. § 75.400. Titled “Accumulation of combustible materials,” thestandard specifies that 

 

Coal dust,including float coal dust deposited on rock-dusted surfaces, loose coal, andother combustible materials, shall be cleaned up and not be permitted toaccumulate in active workings, or on diesel-powered and electric equipmenttherein.

 

In what can befairly described as a staggering number of individual violation instances, thisOrder, No. 9257780, identified 10 separate instances of 30 C.F.R § 75.400violations, the details of which will be discussed. By the time this Order wasissued the number of cited violations of this standard had risen to 71(seventy-one). With the addition of yet another 30 C.F.R § 75.400 violation, bythe issuance of Order No. 92457810, that number became 78 (seventy-eight) suchviolations.  Recall that as of June 17, 2021, the number of cited violationswas 57 (fifty-seven). Thus, in the six-month interval, the Cumberland Mine wascited at least another 15 times for violating this standard. 

 

**Notable aspects of****Order No. 927780**

The Respondent’s argument is that****“the facts andevidence would not support the high negligence or unwarrantable failurefindings. Specifically, Respondent would argue that the conditions could haveoccurred or worsened over a short period of time due to the quantity andvelocity of air on the belt and that the evidence would not prove that theconditions observed by the inspector were indicative of the conditions at thetime of the most recent examination.” Motion at 3-4.

 

This claim is hard to believe, and the Secretary apparentlytakes the same view, as he is unwilling to walk away from the issuinginspector’s negligence and unwarrantable failure designations. There areseveral reasons to look askance at the Respondent’s claim. **For starters,there is the inspector’s undisputed finding of ten separate instances of 75.400violations for this Order alone**. Any one of the conditions would havejustified issuance of a violation of the standard. Then too, among the teninstances, seven (7) involved bottom rollers turning in loose coal and coalfines. These accumulations were not restricted to bottom rollers; the inspectornoted that “[a]ccumulations [we]re present on mine floor, roof, ribs, structureand water line on previous rock dusted surfaces” at the 11 block to 6 MainsWest #1 Transfer, and that those “**accumulations measured 10 foot wide by2750 feet long.”**Petition at 13-15 (emphasis added). 

 

And one can gain a true sense of the enormity of theviolations for this order as it took “[s]even Hourly miners, two supervisorsand three rock dusters work[ing] to correct [the violative] conditions for 3hours for total of **36 man hours** to remove[ ] all accumulations and rockdust the area.” Petition for a Civil Penalty at 10-11 (emphasis added).

 

With the Order being issued on December 20, 2021, it isnoteworthy that none of the excuses later raised by the Respondent’s attorney,were advanced when the inspector held a safety and health conference on January6, 2022. Yet, one would have expected those later-raised claims to have beenraised at the conference, because they were factually-based excuses which didnot require an attorney’s expertise, the point being that, if they existed, themine operator had amply opportunity post the Order’s issuance to learn of andassert the claim. With ten separate instances found, that number by itself,casts doubt on the claim that they all “could have occurred or worsened over ashort period of time.”

 

With all of the foregoing, MSHA understandably reviewed theOrder to determine whether a special assessment was appropriate. Cogently, thatreview led to the conclusion that it was warranted. MSHA noted that itsinspector “observed extensive accumulations of combustible material on the 6Mains West #1 Belt, including loose coal, coal fines, and float coal dust. Thematerial was observed on the mine floor, roof, ribs and on equipment. Inmultiple places, the material was in contact with moving belt rollers, and inone location was warm to the touch and emitting smoke. These conditions providedfuel for a mine fire and could have resulted in serious injuries to multipleminers.” Petition at 7. On the basis of those findings, MSHA concluded that themultiple instances “exhibited a high degree of negligence, presentedsignificant risk of injury, and [we]re part of an extensive history ofaccumulation violations at this mine. This indicates the need for greaterdeterrence than the regular assessment penalties would provide.” *Id.*

 

It must be asked whether in circumstances such as this dopenalty reductions of this order faithfully carry out Congress’ expressdirection that penalties for violations are to be of such a magnitude that mineoperators are sufficiently incentivized to comply with the safety and healthstandards or whether reduced penalties are a cheaper alternative to compliance.

**Notable aspects of OrderNo. 92457810**

** **

Barely a month after the same MSHAinspector issued his Order, No. 927780, he issued another order for violationsof the same safety standard, 30 C.F.R. § 75.400, addressing accumulations ofcombustible materials.  This time the inspector found, **not 10, but 26(twenty-six)**separate****instances of the standard being violated. Moredramatic than the effort required to abate the violative accumulations foundfor Order No. 9257780, it “took approximately 10 men per shift and 24 hours tocorrect [the accumulations] **for a total of 720 man hours**.” Petition fora Civil Penalty at 16 (emphasis added). 

As with OrderNo. 927780, the Respondent again contends that “the high negligence andunwarrantable failure findings are not supported. Specifically, Respondentargues that miners were working on the cited conditions when the order wasissued and that the examination books show that corrective actions were beingtaken on an ongoing basis. Furthermore, because a large portion of the mine hadrecently been sealed, increased air velocity on the belt caused coal fines tobe blown off the belt and the conditions would change significantly over ashort period of time.” Motion at 4-5.****

            Given the staggering number of individualinstances it is hard to take the Respondent’s claims seriously. Severalobservations cast doubt on those claims. To begin, it is noteworthy that bothOrder No. 927780 and Order No. 9257810, issued just a month apart, stem fromaccumulations on the same belt, the 6 Mains West #1 belt.  While each of the 26instances recorded for Order No. 9257810 make out violations, some are particularlynoteworthy. For example, instance number 2 recorded accumulations 8 feet wideby 1500 feet long. Others were also extremely long: instance number 5 at 750feet; instance no. 6 at 500 feet, instance no 14 at 125 feet. Eleven (11) ofthe violations involved loose coal and coal fines in contact with a bottomroller.  

 

**A disaster waiting to happen?**[2]****

 

On severaloccasions the Commission has spoken to the importance of this standard.

In *San Juan Coal*, 29 FMSHRC 125, (March 2007), itnoted: 

 

Repeated similarviolations may be relevant to an unwarrantable failure determination to theextent that they serve to put an operator on notice that greater efforts arenecessary for compliance with a standard. Amax Coal Co., 19 FMSHRC 846, 851(May 1997); see also Consol, 23 FMSHRC at 595 (“a high number of pastviolations of section 75.400 serve to put an operator on notice that it has arecurring safety problem in need of correction.”) (citations omitted). The purposeof evaluating the number of past violations is to determine the degree to whichthose violations have “engendered in the operator a heightened awareness of aserious accumulation problem.” Mid-Continent Res., Inc., 16 FMSHRC 1226, 1232(June 1994); see also Consol, 23 FMSHRC at 595. The Commission has alsorecognized that ‘past discussions with MSHA about an accumulation problem serveto put an operator on heightened scrutiny that it must increase its efforts tocomply with the standard.’” Consol, 23 FMSHRC at 595 (citations omitted).

 

*Id.*at131.

 

 

In *Mid-Continent Resources*, 16 FMSHRC 1218 (June 1994), againaddressing 30 C.F.R § 75.400, the Commission rejected the idea that where thecoal in issue is of low combustibility, that does not prevent a significant andsubstantial finding as “coal is, by its nature, combustible.” *Id.*at 1222.

 

In another *Mid-ContinentResources*case, 16 FMSHRC 1226 (June 1994), the Commission noted thatsection 75.400 is violated “ ‘when an accumulation ofcombustible materials exists.’ Old Ben Coal Co., 1 FMSHRC 1954, 1956(December 1979); see alsoOld Ben Coal Co., 2 FMSHRC 2806, 2808(October 1980). *Id*. at 1229. The Commission has further explained that aprohibited “accumulation” refers to a mass of combustible materials that couldcause or propagate a fire or explosion. Old Ben, 2 FMSHRC at 2808.” Suchcombustible material includes float dust, coal fines, and lump coal.” *Id.*

That decision underscored the relevance of a significanthistory of 75.400 violations, noting that the mine “was cited for 170 allegedviolations of section 75.400, which should have engendered in the operator a heightenedawareness of a continuing accumulation problem. S. Ex. M-3. Cf.PeabodyCoal Co., 14 FMSHRC 1258, 1259, 1264 (August 1992); Youghiogheny &Ohio Coal Co., 9 FMSHRC 2007, 2011 (December 1987).” *Id*. at 1232. 

 

If a tragedy occurs, this decisiontells the tale of its avoidable origin. With the inspector diligently notingthe many, many instances of accumulations, and with MSHA then taking thosematters with the seriousness the conditions demanded, by issuing special assessments,the matter was then in the hands of the Secretary of Labor to evaluate thematters. The Secretary did so, but in a manner, at least to the Court, that wasat odds with itself, as the Secretary stood by the inspector’s evaluations,while significantly reducing the special assessment penalties. Though theSecretary touts that, if regularly assessed, the penalties would have totaled$19,465.00, that is the wrong comparison. MSHA did not apply a regularassessment to the Orders and understandably so, as the special assessmenttotaled $80,200.00. 

 

As noted by the Third Circuit Courtof Appeals in its February 2008 decision regarding the Cumberland Mine: “[t]hemine has the unfortunate distinction of being “gassy,” which means that ittypically liberates more than 1,000,000 cubic feet of methane in a twenty-fourhour period and consequently requires spot inspection every five days byrepresentatives of MSHA.” 

*Cumberland Coal Resources,*515 F.3d 247, 249 (3d Cir.2008).

 

Given the disquieting number of 30C.F.R § 75.400 violations issued over the past two years at this high methaneproducing mine, 78 times, not to mention that 26 of those occurred within amonth of these two Orders, it is difficult to appreciate the justification forthe 40% (forty percent) reduction in this instance.

 

** **

**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.

 

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.[3]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 agreed-uponpenalties are 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 2. The Court cannot subscribe to such language.[4]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**, the assessedpenalties for the orders contained in this docket are **MODIFIED** as setforth above and Respondent Iron Cumberland, LLC, is **ORDERED** to pay theSecretary of Labor the sum of **$48,338.00**within 30 days of this decision.[5]

 

 

 

 

/s/William B. Moran

William B. Moran

Administrative Law Judge

 

 

 

 

Distribution:

 

Robert S. Wilson, Esq., Office of the Solicitor, Division ofMine Safety and Health

201 12th Street South, Suite 500, Arlington,Virginia 22202-5450

wilson.robert.s@dol.gov 

 

R. Henry Moore, Esq., Fisher Phillips, Six PPG Place, Suite830, Pittsburgh, Pennsylvania 15222

hmoore@fisherphillips.com

 

----

[1]Originally assessed as “fatal,” a subsequent correction, made on February9, 2022, changed the injury expected from “fatal” to “lost workdays,” with theexplanation that 

 

Theinjury-causing event that would most reasonably result from the cited conditionwas a mine fire caused by frictional heating of coal contacting the movingconveyor belt and rollers. Fires in isolated belt entries typically result inlost workday or restricted duty type injuries. Explosion of the coal dust inthe affected area was unlikely due to the absence of methane accumulations orother conditions that would place a sufficient quantity of dust in suspension. 

 

*Id*. at 12. 

 

The justificationgiven was that “[t]his subsequent action is issued as a result of a safety andhealth conference conducted January 6, 2022.” *Id*. 

 

[2]A mining disasteris defined as an incident with 5 or more fatalities. https://wwwn.cdc.gov/NIOSH-Mining/MMWC/MineDisasters/Count

 

[3]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.

 

[4]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.*Neither does the Courtendorse or agree with the Secretary’s claim that*the modifications to thecitations are immaterial,*nor with the accompanying claim that*theSecretary’s evaluation of these citations, as modified, remain preserved forfuture enforcement actions.*The Court has never been informed of any such**value. Such boilerplate claims are almost always hollow, in view of theactual modifications and penalty reductions that makeup these motions.

 

5 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.