**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.

 
   PERRY COUNTY RESOURCES, 
                        Respondent                                                                      |   |   | CIVIL PENALTY PROCEEDING(S)

 

Docket No. KENT 2022-0024

A.C. No. 15-19015-546383

 

 

 

 

 

 

Mine: E4-2 

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** **

** **

**ORDER**

** **

Before the Courtis the Secretary’s Motion to Approve Settlement of the citations and orderinvolved in this matter. The parties move to modify one of the citations, asstated below. The penalty would be reduced accordingly, from the originalassessed amount of **$1,470.00**to**$1,204.00**.

 
| **Citation/Order No.** | **Originally Proposed Assessment** | **Settlement Amount** | **Modification**                                                                                                                                                                                |
|------------------------|------------------------------------|-----------------------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| **KENT 2022-0024**     |
| 9282163                | $302.00                            | $302.00               | Admitted violation of 30 C.F.R.§75.380(d)(1) involving  primary escapeway on 1 West Mains

No modification, paid as assessed                                                                   |
| 9282162                | $336.00                            | $336.00               | Admitted violation of 30 C.F.R.§75.202(a), also involving  primary escapeway on 1 West Mains

No modification, paid as assessed but 104(b) order issued  and not in the record                |
| 9282123                | $530.00                            | $264.00               | Modified  to “Low” negligence, **50% penalty reduction**

Yet  another escapeway related violation, this time involving the secondary  escapeway – directional lifeline not maintained       |
| 9282125                | $302.00                            | $302.00               | Admitted violation of 30 C.F.R. §75.1722 moving machine  part tailpiece guard not maintained 

No modification, paid as assessed                                                               |
| **Total**              | **$1,470.00**                      | **$****1,204.00**     | 18% Total Penalty Reduction                                                                                                                                                                |

 

            The Court reviewed the Motion and the draft Ordersubmitted by the Secretary. Upon doing so, a problem was revealed. The recordfor this docket is not complete because the official record for Citation No.9282162 is missing the documents regarding a section 104(b) order issued inconnection with that citation. The Secretary may not elect to hide officialdocuments in connection with Mine Act enforcement actions from public view.

Before addressing the missingsection 104(b) order, it is necessary to step back and examine the underlyingsection 104(a) citation. Citing a violation of 30 C.F.R. §75.202(a), thatstandard, titled “Protection from falls of roof, face and ribs,” requires that“[t]he roof, face and ribs of areas where persons work or travel shall besupported or otherwise controlled to protect persons from hazards related tofalls of the roof, face or ribs and coal or rock bursts.” 30 C.F.R. §75.202(a).

 

            The MSHA inspector issued the Citation, No. 9282162,on October 25, 2021, and informed under the condition or practice section that“[t]he roof bolt plates are missing, due to rusting, on several roof boltsalong the primary escapeway entry on the 1 West Mains. The missing platesextend from crosscut #5 to crosscut #22 in various locations. This conditionexposes miners to hazards of roof fall dangers. **Draw rock has fallen intothe roadway in these locations. The weekly examiner travels this area one timea week**.” (emphasis added). 

 

            In his evaluation, the Inspector marked theinjury as reasonably likely to occur, resulting in lost workdays or restrictedduty. Accordingly, he listed the violation as “significant and substantial.” Thenegligence was marked as “moderate.” Though originally the inspector marked thetermination of the violation to be due the next day, October 26th,thereafter the operator requested additional time to abate the violation for“spot bolt[ing] the roof in the cited location,” with the delay needed to “get[]the bolt machine to the area.” The inspector granted the additional time, withthe new termination date of October 29, 2021 by 3 p.m.

 

            The record does not reveal whether the extendedtermination date was met, though one may presume it was not, because Exhibit Afor this docket reveals that a section 104(b) order was issued. It is thatinformation which is missing from the record and about which the Secretary hasrefused to supply it. The Court requested that the Secretary supply the missingdocuments related to the section 104(b) order. The Secretary’s non-attorneyrepresentative, a conference and litigation representative, (“CLR”), Gary W.Oliver, refused to supply the missing documentation. In an email, Mr. Oliverstated “[t]he (b) order requested is not related to the single violationmodified in this settlement, Citation No. 9282123. The underlying violation tothe (b) order, Citation No. 9282162 has been affirmed and as reflected to theExhibit A, the good faith abatement discount was not given. Therefore there isno compromise of penalty for Citation No. 9282162 requiring the court’sapproval pursuant to Section 110(k). The Secretary requests an order approvingor denying the motion to approve settlement as filed.” E-mail from Gary W.Oliver, CLR, MSHA (May 31, 2022).

 

The Court responded that it did notsee the matter as the CLR did, informing that “each citation/order, being partof the docket, is within [the Court’s] authority to conduct an informed review.[The Court added] that it doesn’t speak well of MSHA to hide information undercover of a settlement. As [the Court] told [the CLR] in an earlier email today,the order is part of the public record. It should have been in the officialrecord, yet it is not there. If [the CLR] do[es] not want the order to see thelight of day, [the Court] think[s] that is an unwise course of action as therepresentative charged with protecting the safety and health of miners. Asformer Supreme Court Justice Louis Brandeis stated: ‘sunlight is said to be thebest of disinfectants.’ 

If you refuse to comply, [the Court] will have no choice butto file a FOIA request and in [the Court’s] ruling on the motion to approvesettlement [it would have] to take note of the agency’s unwillingness toprovide public record information for this admitted violation.” June 14, 2022email from the Court to the parties. 

 

Thereafter, on June 13, Emily TolerScott, an attorney for the Secretary, entered her appearance.[1]

 

**DISCUSSION**

 

            The Court does not believe that the fact aviolation is paid in full, with no modifications made to the issuinginspector’s evaluation, is the end of the matter. The principle behind thisview is very basic, in carrying out its review responsibilities under 30 U.S.C.§820(k), the Court is obligated to be fully informed about the circumstancessurrounding the issuance of a citation or an order. Citation No. 9282162 ispart of this docket, but the documentary record concerning this admittedviolation is incomplete. This is because a section 104(b) order was issued bythe inspector in connection with that Citation, No. 9282162. The Secretary maynot decide to selectively secrete such information fromthe Court, the public and especially from the miners it is charged to protect. Fromthis Court’s perspective, such a stance is inimical to the spirit of the MineAct.

 

A Section 104(b) order is an importantfeature of the Mine Act. Section 104(b) of the Mine Act states:

If,upon any follow-up inspection of a coal or other mine, an authorizedrepresentative of the Secretary finds (1) that a violation described in acitation issued pursuant to subsection (a) has not been totally abated withinthe period of time as originally fixed therein ... and (2) that the period oftime for abatement should not be further extended, he shall determine theextent of the area affected by the violation and shall promptly issue an orderrequiring the operator of such mine or his agent to immediately cause allpersons, except those persons referred to in subsection (c), to be withdrawnfrom, and to be prohibited from entering, such area until an authorizedrepresentative of the Secretary determines that such violation has been abated.

30 U.S.C. § 814(b). 

As the Commission has noted, such ordershave significance in their own right. It has observed that: 

First ofall, section 105(a), by its terms, does not distinguish between the differenttypes of orders that can be issued under section 104. Absent any language inthe statute suggesting that the Secretary cannot propose a penalty inconnection with a section 104(b) order, we will not interpret the phrase “orderunder section 104” in section 105(a) to exclude section 104(b) orders. 

Secondly,contrary to her claim, the Secretary may indeed assess a separate penalty forthe failure to abate a violation. Section 105(b)(1)(A) of the Mine Act providesin pertinent part:

If theSecretary has reason to believe that an operator has failed to correct aviolation for which a citation has been issued within the period permitted forits correction, the Secretary shall notify the operator by certified mail ofsuch failure and of the penalty proposed to be assessed under section 110(b) byreason of such failure and that the operator has 30 days within which to notifythe Secretary that he wishes to contest the Secretary’s notification of theproposed assessment of penalty.... 30 U.S.C. § 815(b)(1)(A). Consequently,section 110(b) of the Act and MSHA’s regulations authorize the Secretary toassess steep daily penalties. *See* 30 U.S.C. § 820(b); 30 C.F.R. §100.5(c) (“Any operator who fails to correct a violation for which a citationhas been issued under section 104(a) of the Mine Act within the periodpermitted for its correction may be assessed a civil penalty of not more than$6,500 for each day during which such failure or violation continues.”).

            Moreover,the fact that a withdrawal order has been issued increases the likelihood thatsuch a penalty will be assessed. The legislative history of the Mine Act statesthat under section 105(b)(1)(A), like under section 105(a):

**[T]heSecretary is to similarly notify** operators and **miners’ representatives**when he believes that an operator has failed to abate a violation within thespecified abatement period. *In most cases, a failure to abate closure orderwill have been issued pursuant to Section [104(b)]*. The notice of proposed **penalty**to operators in such cases shall state that a [**104**(**b**)] **order**has been issued and the **penalty** provided by Section [110(b)] of the Actshall also be proposed. *This **penalty** shall be proposed in addition tothe **penalty** for the underlying violation required by Section [110(a)] ofthe Act.*S. Rep. No. 95-181, at 34-35 (1977), *reprinted in* SenateSubcomm. on Labor, Comm. on Human Res., *Legislative History of the FederalMine Safety and Health Act of 1977*, at 622-23 (1978). 

In addition,even if no separate penalty for failure to abate a violation is assessed, thefailure to abate allegation upon which a section 104(b) withdrawal order rests,if established, increases the amount of the penalty that is ultimately assessedfor the underlying violation. As Judge Zielinski recognized in his firstdecision, ‘the demonstrated good faith of the person charged in attempting toachieve rapid compliance after notification of a violation is one of thefactors that the Commission must consider in fixing the amount of a civilpenalty.’ 28 FMSHRC at 413 (quoting section 110(i) of the Mine Act, 30 U.S.C. §820(i)). Thus, the sanction for a failure to abate is not only a withdrawalorder, but, likely, a higher penalty when the Secretary eventually assesses apenalty for the original violative condition that allegedly was not abated in atimely fashion. *See NAACO Mining Co.*, 9 FMSHRC 1541, 1545 (Sept. 1987) (‘Undersections 104(b) and 110(b), if the operator does not correct the violationwithin the prescribed period, the more severe sanction of a withdrawal order isrequired, and a greater civil penalty is assessed.’).

*UMWAv. Maple Creek Mining*, 29 FMSHRC 583, 592-594 (July 2007) (emphases added).

            Perthe above decision, the Commission recognized the independent importance of104(b) orders may be the subject of a penalty in their own right, citingsection 104(b)(1)(A).[2]Thelegislative history, as also cited by the Commission, makes this plain: “[t]henotice of proposed **penalty** to operators in such cases shall state that a[**104**(**b**)] **order** has been issued and the **penalty**provided by Section [110(b)] of the Act shall also be proposed. *This **penalty**shall be proposed in addition to the **penalty** for the underlyingviolation required by Section [110(a)] of the Act.*” *Id.* at 593. (emphasesadded)*.*

**Thoughno additional reasons are needed to require disclosure of the (b) order in thismatter, the record does not reveal if the Secretary met his obligation tonotify the miners’ representatives when, as here, he believed that an operatorhas failed to abate a violation within the specified abatement period.

**ThisCourt is well aware that its review of settlements is presently cabined withinthe terms of the Commission’s decisions in *The American Coal Co.*, 40FMSHRC 983 (Aug. 2018) (“*AmCoal*”) and *Rockwell Mining, LLC*, 40FMSHRC 994 (Aug. 2018) and that under those decisions the Court’s review rolehas become statistically perfunctory.[3]However,there is still an obligation and duty to examine *each* citation *andorder*within a submitted docket, even if the citation is not contested andpaid as originally assessed. The responsibility to ensure that there is *acomplete record* is separate and apart from, and not mutually exclusive to,the review of violations that have settled, whether such settlements are forthe full amount proposed or some lesser amount.[4]

            Frankly, the Court is at a loss to understandwhy the Secretary of Labor is not in full support of providing the *fullrecord* of the enforcement actions taken in connection with an admitted104(a) citation. In this matter that involves hiding the inspector’s issuanceof a 104(b) order in connection with that citation. The apparent decision tosecrete such information from the Court, the public and especially from theminers it is charged to protect is perplexing and at odds with the admonitionfrom several federal courts invoking Justice Louis D. Brandeis’ remark that “Sunlightis said to be the best of disinfectants.” *See, for example*, *Argus v.U.S. Dept Agriculture,*740 F.3d 1172**(8th Cir. 2014),**whereinArgus invoked the federal law meant to bring disclosure sunlight to thegovernment bureaucracy, in its request to see spending information from theU.S. Department of Agriculture under the Freedom of Information Act,*5U.S.C. § 552.*To the same effect as the Secretary has done here, theDepartment of Agriculture, with little explanation, refused disclosure. Reversingthe lower court’s determination that the information sought was exempt fromdisclosure, the Eighth Circuit took note of Justice Louis D. Brandeis’ remark aboutthe disinfecting benefit of sunlight.*Id.*at 1173, citing*OtherPeople’s Money* 92 (1914).

 

            For these reasons, the Court **ORDERS** theSecretary to disclose all documents pertaining to the issuance of the section104(b) order associated with Citation No. 9282162.

 

 

 

 

/s/William B. Moran

William B. Moran

Administrative Law Judge

 

 

 

 

 

 

 

 

Distribution:

 

Emily Toler Scott, Esq., Acting Counsel for AppellateLitigation, U.S. Department of Labor 

Office of the Solicitor, Division of Mine Safety &Health, 201 12th Street South, Suite 401 

Arlington, VA 22202 scott.emily.t@dol.gov

 

Gary W. Oliver, Conference &Litigation Representative, U.S. Department of Labor, MSHA

3837 S. US Hwy 25E, Barbourville,KY 40906 oliver.gary@dol.gov

 

Gregory Q. Jensen, Perry CountyResources, LLC, P.O. Box 606 

Fishers, IN 46038GQJ@AmericanResourcesCorp.com

----

[1]On behalf of theSecretary, on June 13, 2022, Attorney Toler Scott filed a Supplemental Motionto Approve Settlement or Motion to Certify for Interlocutory Review. Thatmotion will be addressed in a separate order.

[2]In thatconnection, as noted above, the Commission observed that in circumstances ofsuch failures, the Secretary is to notify the operator of such failure and ofthe penalty proposed to be assessed under section 110(b) by reason of suchfailure. Under such circumstances the Secretary may assess steep, daily,penalties. Those penalties may now be up to $8,101.00 per day. 30 C.F.R. Part100.5(c) (2021).

[3]As CommissionChairman Arthur Traynor and Commissioner Mary Lu Jordan have noted, judgesapplying this precedent are able to approve 99.96% of settlement motionssubmitted for their review. *See AmCoal I,* 38 FMSHRC at 1977 n.7 (notingthat in a five-year period from approximately 2011 to 2016, Commission Judgesapproved 38,501 settlements and denied only 17); *Hopedale Mining,*42FMSHRC 589, 604, n.2 (Aug. 2020) (Commissioners Jordan and Traynor, dissenting).

 

[4]The 104(b) Order,presently hidden from the record, is of additional concern because five minutesafter issuing Citation 9282162, the inspector issued another Citation, No.9282163, citing a separate safety hazard in the same escapeway.