******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

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| SECRETARY  OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION  (MSHA),

                        Petitioner

 

                        v.

 
   GREENBRIER MINERALS, LLC,
                        Respondent                                                                      |   |   | CIVIL  PENALTY PROCEEDING

 

Docket  No. WEVA 2023-0166

A.C. No.  46-09514-569163

 

 

 

 

 

 

Mine: Muddy  Bridge 

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

**DECISION APPROVING SETTLEMENT**

** **

Before: JudgeMoran

 

It is**ORDERED**that theConference and Litigation Representative (CLR), Ray A. Cartwright, be acceptedto represent the Secretary in accordance with the notice of limited appearancehe has filed with the penalty petition. *Cyprus Emerald Resources Corporation*,16 FMSHRC 2359 (Nov. 1994).

 

This case is before meupon a Petition for Assessment of a Civil Penalties filed under section 105(d)of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). Themotion is brought by non-attorney representatives, known as “conference andlitigation representatives (“CLRs”). The CLR has filed amotion to approve settlement of the violations involved in this matter. Theparties have moved to approve the proposed settlement as follows:

 
| **Citation/Order**

**No.** | **MSHA’s**

**Proposed Assessment**   | **Settlement**

**Amount** | **Modification**                                                                                                                            |
|-----------------------------|---------------------------------------|----------------------------|---------------------------------------------------------------------------------------------------------------------------------------------|
| **WEVA 2023-0166**          |
| 9568959                     | $1,069.00                             | $535.00                    | Modified  from “Reasonably Likely” to “Unlikely”, and consequentially removing the  “Significant and Substantial” designation             |
| **TOTAL**                   | **$1,069.00**                         | **$535.00**                | **50%  reduction in penalty from regular assessment figure**                                                                               |

 

Involved in this matteris a section 104(a) citation for a now-admitted violation of 30 C.F.R. §75.1725(a).That standard, titled “Machinery and equipment; operation and maintenance,”provides at the cited subsection that “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.” 

 

In issuing thecitation, MSHA Inspector Emory Pack found that a Mac 12 emergency ride, companynumber 001, had a non-functioning parking brake. The inspector noted that the machineis used to transport miners from the end of the track to the No. 1 section. Petitionfor Civil Penalty at 17. As the inspector marked the violation as reasonablylikely to result in an injury producing lost workdays or restricted duty, heproperly designated it as significant and substantial. The negligence was listedas moderate. *Id.*

 

That the inspector properlyso evaluated the non-functioning brake was borne out by the fact that the parkingbrake was replaced. *Id* at 18

 

The Motion asserts thefollowing in support of the modification and the 50% penalty reduction:

 

Respondentdisputestheleveloflikelihoodofinjurycharacterizedbythecitation. Respondent contends the **servicebrakes**[1]****on the personnel carrier were working properly when tested.**Respondent further contends the terrainthe personnel carrier travels is slightly rolling and not very steep.When the personnel carrier is parked andunattended,thetransmissionisleftinreverse,andthewheelsareturnedintotherib.**Respondent states thiscitation does not have a confluence of factors to support theS&Sdetermination.TheSecretarydoesnotnecessarilyagreewithRespondent’s position but does recognize alegitimate factual and legal dispute and believes that settlementofthecivilmoneypenaltyisconsistentwithhisenforcementresponsibility under the Mine Act. Therefore, the Secretary agreesto modify the citation from “Reasonably Likely” to “Unlikely” and to delete the“Significant and Substantial” designation.TheSecretary also agrees to accept a reduced penalty, which reflects themodificationtotheissuance.

 

Motion at 3 (emphasis added).

 

**Analysis**

** **

****The support offered is a display ofirrelevant considerations, because it is entirely composed of factors that arenot to be considered, per the clear directions from the United States Courts ofAppeals. Those Courts haverejected the ‘alternative safety measures’ raised by the Respondent whenanalyzing the significant and substantial designation. Accordingly, redundantsafety measures are not to be considered in evaluating a hazard.

 

            For example, in *KnoxCreek Coal*, 811 F.3d 148 (4th Cir. 2016), that Court observed: 

 

“[i]f mine operators could avoid S& S liability—which is the primary sanction they fear under the Mine Act—bycomplying with redundant safety standards, operators could pick and choose thestandards with which they wished to comply.”...Such a policy would make suchstandards “mandatory” in name only. It is therefore unsurprising that otherappellate courts have concluded that ‘[b]ecause redundant safety measures havenothing to do with the violation, they are irrelevant to the [S & S]inquiry.’ Cumberland Coal, 717 F.3d at 1029; see also Buck Creek, 52 F.3d at136.

 

*KnoxCreek Coal,* 811F.3d 148, 162 (4th Cir. 2016).

 

Furtherregarding this issue, in *Consolidation Coal*, 895 F.3d 113, (D.C. Cir. 2018),the D.C. Circuit, referring to its decision in *Cumberland Coal Resources, LPv. Federal Mine Safety & Health Review Commission*, 717 F.3d 1020 (D.C.Cir. 2013), noted that it:

 

interpreted the statutory text tofocus on the “nature” of “the violation” rather than any surroundingcircumstances. More to the point, the court held that “consideration ofredundant safety measures,”—that is, “preventative measures that would haverendered both injuries from an emergency and the occurrence of an emergency inthe first place less likely”—“is inconsistent with the language of [Section]814(d)(1).” *Id.* at 1028–1029. 

 

*Id.* at 118-119. 

 

            Such irrelevancies do notacquire legitimacy in the context of settlements because to do so, would meanthat a lesser standard is applied. It is disconcerting that the Secretary’snon-attorney representatives continue to advance these rejected justifications[2]for penalty reductions, as it displays a lack of respect for the holdings ofthe Courts of Appeals and Congress’ explicit direction that penalties must besufficient to encourage operators to comply with safety and health standards,as opposed to noncompliance with the attendant benefit of paying greatlyreduced penalties. 

** **

            Despite the aboveobservations, the Court is not permitted to make reasonable inquiry aboutsettlement motions. With that restriction, 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. The Courtmust and does adhere to all Commission precedent. 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 motionto approve settlement is **GRANTED**, the citation contained in this docket is**MODIFIED** as set forth above, and it is **ORDERED**that**Greenbrier Minerals, LLC**pay the Secretary of Labor the sum of **$535.00** within 30 days of thisorder.[3]

** **

 

 

 

/s/William B. Moran

                                                                                    WilliamB. Moran

                                                                                    AdministrativeLaw Judge

 

 

 

 

 

Distribution:

 

RayA. Cartwright, Conference & Litigation Representative, U.S. Department ofLabor, MSHA, 100 YMCA Drive, Madisonville, KY 42431 cartwright.ray@dol.gov

 

Lorna Waddell, Legal Counsel, DINSMORE& SHOHL LLP, 215 Don Knotts Blvd., Suite 310,

Morgantown,WV 26501 lorna.waddell@dinsmore.com

 

----

[1]The citation wasfor the non-functioning parking brake, *not the service brake.*

[2]As the CLRs arenot attorneys, the Court realizes they simply follow the orders from the Solicitoras to the claimed justifications, even if they are without merit. 

 

[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. 

It isvital to include Docket and A.C. Numbers when remitting payments.