Secretary of Labor v. Kentucky Fuel Corporation

Plain-English summary

Kentucky Fuel was cited for failing to follow its ground-control plan's flyrock precautions when it drilled seven rows of blast holes where the plan allowed no more than four. The Secretary proposed reducing the specially assessed $30,200 penalty to $1,000 and changing the citation from S&S, highly likely, fatal, and high negligence to much lower findings. Judge William B. Moran held that the repeated settlement motion listed the operator's technical assertions without explaining how they justified a 97% reduction or whether the Secretary agreed after consulting the inspector. He also rejected the claim that unloaded boreholes made injury unlikely because continued normal mining would include loading them for blasting. The Judge denied settlement and required either a supported new agreement or trial.

Decision snapshot

• Cited standard: 30 C.F.R. § 77.1000
• Outcome: The proposed reduction from $30,200 to $1,000 was denied, with a new settlement motion or hearing required.
• Key point: A major reduction in a serious blasting case requires a clear explanation linking the technical facts to lower gravity and negligence findings.

Full text (FMSHRC public release)

FEDERAL MINE
SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9933 / FAX: 202-434-9949

August 3, 2015

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH

ADMINISTRATION
(MSHA),

Petitioner,

v.

KENTUCKY
FUEL CORPORATION,

Respondent.

PENALTY
PROCEEDING

Docket
No. KENT 2012-979

A.C.
No. 15-19475-286532

Mine:
Beech Creek Surface Mine

ORDER DENYING JOINT MOTION TO APPROVE
SETTLEMENT

Before:                        Judge
Moran

In this civil
penalty proceeding involving an alleged violation of 30 C.F.R. 77.1000, Citation
No. 8259158 states that “[t]he fly rock prevention plan (general safety
precautions) which were incorporated into the acknowledged ground control plan
on August 5, 2011, is not being complied with on this date.” The cited
standard, titled “Highwalls, pits and spoil banks; plans,” provides:

Each operator shall establish and
follow a ground control plan for the safe control of all highwalls, pits and
spoil banks to be developed after June 30, 1971, which shall be consistent with
prudent engineering design and will insure safe working conditions. The mining
methods employed by the operator shall be selected to insure highwall and spoil
bank stability.

30 C.F.R. § 77.1000.

The Secretary has
filed a joint motion to approve settlement in which he seeks a 97% reduction of
the amount from that which was initially proposed, from $30,200.00 to $1,000.00.
Despite a resubmission of the motion, the “basis of compromise” presented by
the Secretary remains inadequate and prevents the Court from carrying out its
responsibilities under section 110(k) of the Mine Act. Accordingly, for the
reasons which follow, the Secretary’s motion is DENIED.

The Joint Motion
begins with the Secretary’s standard, one-size-fits-all language:

The Mine Safety
and Health Administration (“MSHA”) proposed civil penalty for the citation at
issue [sic] [is] in accordance with the statutory penalty criteria in
Section 110(i) of the Mine Act, 30 U.S.C. § 820(i), and MSHA’s civil penalty
regulations at 30 C.F.R. Part 100.

Representatives
for the Secretary and Respondent have discussed the alleged violation and
MSHA’s proposed penalty, and seek to settle the contested citation in the above
captioned docket as follows: . . . [m]odify the citation from “reasonably
likely” to “unlikely”, remove the S&S designation, and modify from “high”
to “moderate” negligence, and from “fatal” to “lost workdays or restricted
duty[.]”

In reaching this
settlement, the Secretary has evaluated the likelihood of obtaining a still
better settlement, the prospects of coming out better, or worse, after full
trial, and the resources that would need to be expended in the attempt. The
Secretary has determined that the public interest and the effective enforcement
and deterrent purposes of the Mine Act are best served by settling the citation
and order as indicated above.

Consistent with
the position the Secretary has taken before the Commission in The American
Coal Company, LAKE 2011-13, the Secretary believes that the pleadings in
this case and the above summary give the Commission an adequate basis for
exercising its authority to review and approve the Secretary’s settlement under
Section 110(k) of the Mine Act, 30 U.S.C. § 820(k).

Second Jt. Mot. at 1-2 (paragraph
designations omitted).

In the
alternative to its fiat, the Secretary then reluctantly offered up what he
considered to be a justification for the 97% reduction. Initially, in his first
settlement motion submission, the justification stated, in full:

Basis of compromise of penalty: The
Respondent contends that the violation was not reasonably likely to lead to a
reasonably serious injury because the boreholes were not loaded with
explosives. Respondent asserts that it was not highly negligent because there
were no boreholes drilled deeper than 10 feet and there were only 7 rows of
boreholes. While the Secretary does not necessarily agree with Respondent’s
position, he has agreed to modify the citation from ‘reasonably likely’ to ‘unlikely’,
to remove the S&S designation, and to modify from ‘high’ to ‘moderate’
negligence, and from ‘fatal’ to ‘lost workdays or restricted duty’, and to
accept a reduced penalty. The Secretary believes settlement of the civil money penalty
is consistent with his enforcement responsibility under the Mine Act.

Initial
Jt. Mot. at 3.

This case was,
until recently, assigned to another judge.[1]
That judge found the initial justification insufficient and required a
resubmission. The resubmission, now before the undersigned, was identical to
the quoted language above, but added the following:

The Respondent
further asserts that it did not exceed the maximum number of 8 rows in length
for the blasting pattern in no spoil areas. The Respondent contends it was not
highly negligent because the shot did not exceed the maximum 32 holes, as there
were only 20 holes drilled. The Respondent further contends it was not highly
negligent because it did not exceed the maximum six and three-quarter inch
drill bit. The Respondent asserts it was not highly negligent because it did
not exceed the maximum twelve feet by twelve feet drill pattern.

Second Jt. Mot. at 3 (emphasis added).

The Secretary’s
portion of the resubmission added nothing, only repeating, exactly,
what it stated with the first submission:

While the Secretary does not
necessarily agree with Respondent’s position, he has agreed to modify the
citation from ‘reasonably likely’ to ‘unlikely’, to remove the S&S designation,
and to modify from ‘high’ to ‘moderate’ negligence, and from ‘fatal’ to ‘lost
workdays or restricted duty’, and to accept a reduced penalty. The Secretary
believes settlement of the civil money penalty is consistent with his enforcement
responsibility under the Mine Act.

Id.

There are
several deficiencies with the submissions.[2]
The starting point to appreciate the deficiencies in the motions begins with
the text of the citation itself, which contends:

The fly rock prevention plan
(general safety precautions) which were incorporated into the acknowledged
ground control plan on August 5, 2011, is not being complied with on this date.
Item seven (7) was not being complied with in that a total of seven rows of
holes were drilled where it is required to be a minimum of two and a maximum of
four rows on the no spoil side. The pattern had been drilled out and was
awaiting the loading process. Failure of mine management to follow their ground
control plan stipulations would lead to serious injuries to miners and/or
residents living directly below the blast site.

Citation
No. 8259158.

The “Subsequent
Action” then states: “The Operator is now following the safety precautions
incorporated into their ground control plan. The cited area was shot on
10-21-11 according to their plan.” Citation No. 8259158-01.

The issuing
inspector marked the section 104(a) citation as significant and substantial,
the negligence as high, the likelihood of an injury as highly likely, and the
type of injury as fatal. The follow-up, as noted, reflected that the operator “is
now following the safety precautions incorporated into their ground control
plan.” Id. (emphasis added). The cited area was then shot, one day
after the citation was issued.

MSHA considered
the matter serious enough to specially assess the alleged violation, with that
process bringing about the proposed penalty of $30,200.00. The special
assessment provision, found at 30 C.F.R. § 100.5, provides that “MSHA may elect
to waive the regular assessment under § 100.3 if it determines that conditions
warrant a special assessment . . . [and that] [w]hen MSHA determines that a
special assessment is appropriate, the proposed penalty will be based on the
six criteria set forth in § 100.3(a).” 30 C.F.R. § 100.5(a)-(b).

As even the
second motion reveals, of the 214 words offered to justify the settlement, only
145 of those deal with the basis for the reduction, all offered by Respondent. Of
course, evaluating a settlement is not a matter of counting words, but in
general, as the Court has explained on many occasions, larger reductions
require a more complete explication than modest reductions. In this instance,
the words offered by Respondent consist of assertions only, free of any context
or explanation, stating:

the boreholes were not loaded
with explosives . . . no boreholes drilled deeper than 10 feet and
there were only 7 rows of boreholes, . . . it did not exceed the
maximum number of 8 rows in length for the blasting pattern in no spoil areas,
. . . the shot did not exceed the maximum 32 holes, as there were
only 20 holes drilled . . . it did not exceed the maximum six and three-quarter
inch drill bit . . . [and] it did not exceed the maximum twelve feet
by twelve feet drill pattern.

Second
Jt. Mot. at 3.

The Court
acknowledges that it is possible that these assertions do bear on the issue of
negligence, but the motion provides no information explaining such
relationship, even though this was the second submitted motion. To accept such
unexplained reasons would make a mockery of the settlement review process. Parties
must explain how the assertions justify the reduction, and not simply
present assertions which are not obviously self-explanatory.

The Secretary
provided a proposed order for the Court to grant the motion. For the
Secretary’s part of the rationale, in the 55 words he provides ratifying the
settlement, absolutely no information explaining the relationship of the
assertion to the negligence is set forth, nor does the Secretary even maintain
that he agrees with the assertions at all. Instead, the Secretary merely offers
that he

does not necessarily agree with
the Respondent’s position, but he recognizes legitimate factual and legal
disputes and believes that the proffered settlement is consistent with his
enforcement responsibility under the Mine Act. Therefore, the Secretary agrees
to modify the order as indicated above. The Secretary has also agreed to accept
a reduced penalty.

Second
Proposed Order at 1.

The Court is
therefore left to guess as to both the import of Respondent’s assertions and
what “legitimate” factual and legal disputes are brought to bear by those
assertions. Further, the Secretary does not concede that he agrees with either
the assertions or the legal disputes that are involved, whatever those may be.

Given that this
matter was specially assessed and that technical issues are involved, the
Secretary has a duty to advise whether it consulted with the issuing inspector
about Respondent’s claims and how those claims may impact the degree of
negligence, if at all. Failure to so consult ignores the MSHA official with firsthand
knowledge, the inspector who issued the citation, and sends a message to all inspectors
that their safety and health enforcement efforts are inconsequential.[3] Further,
the Secretary will need to explain how the several assertions made by
Respondent bear upon the claim that Respondent was not highly negligent. So
too, the claim that the violation was not S&S because the boreholes were
not then loaded with explosives makes no sense because, in the course of continuing
normal mining[4]
one would expect that such boreholes would be so loaded, consistent with the
sole purpose of drilling boreholes.

Finally,
although all mine safety standards are important, the subject of blasting, an
inherently dangerous activity, and the hazards of flyrock are particularly
noteworthy and have been the subject of several cases and safety studies. Several
litigated cases underscore the gravity associated with that activity and the
importance that proper procedures be employed.

For example, in Revelation
Energy, 36
FMSHRC 1581, 1587, 1600 (June 2014) (Judge Andrews), a violation of §
77.1000 was found to be significant and substantial where flyrock fell in an
inhabited area approximately 1000 feet from a blast site. It was determined that
the respondent failed to strictly follow their Ground Control Plan, as
required. Id. at 1603. Similarly, in Central Appalachia Mining, LLC,
29 FMSHRC 430, 430-31 (June 2007) (Judge Barbour), flyrock from a highwall
blast flew into the pit where miners were working. Vehicles were hit, and a
miner suffered a compound fracture when his leg was hit. Id. at 433. The
judge found that the violation of 30 C.F.R. § 77.1000 was S&S. Id.
at 444. In Lakeview Rock Products, 34 FMSHRC 244, 246 (Jan. 2011) (Judge
Moran), flyrock penetrated the roof of a home located above the highwall and
600-700 yards away from the detonation site.

Beyond case
examples, MSHA has issued blasting alerts addressing these issues. See, e.g.,
Blasting Safety Alert: 6 Fatalities from blasting accidents 2010-2013, http://www.msha.gov/Alerts/SAbulletins/BlastingAlert12014.pdf.
Studies also warn of these hazards. See T. S. Bajpayee et al., Blasting
Injuries in Surface Mining with Emphasis on Flyrock and Blast Area Security,
35 J. Safety Res. 47 (2004). These resources note that serious injuries
and fatalities result from improper practice during rock blasting. Fatalities
have resulted where the hole diameter and blast pattern used in the blast were
also different from the approved plan. The studies note the importance of
following a good blasting plan. Proper blast design has been identified as the
single most important tool to prevent blasting problems.

Yet another example of the
dangers from flyrock is reflected in an MSHA investigation of a surface coal mine fatal
surface blasting accident when flyrock from a blast struck a miner with 20
years of mining experience. The accident occurred because safe procedures
for conducting blasting operations were not followed. See Mine
Safety and Health Admin., CAI-2007-09, Report of Investigation: Surface Coal
Mine: Fatal Surface Blasting Accident, http://www.msha.gov/FATALS/2007/ftl07c09.pdf
(involving CAM Mining, LLC, July 16, 2007).

These cases and
MSHA’s alerts and studies demonstrate that the dangers of flyrock are real, not
theoretical. Therefore, Kentucky Fuel Corporation’s adherence to its flyrock
prevention plan is essential. Accordingly, the proffered settlement is
rejected. The parties are directed to either submit a new settlement or to be
prepared to present their evidence relating to this matter at the hearing now
scheduled to hear other Kentucky Fuel dockets before the Court, commencing on
August 18, 2015. Should a new settlement motion be submitted, the parties are
advised to be prepared to try this case at the upcoming hearing, if the new
submission is also wanting.

So Ordered.

/s/
William B. Moran

William
B. Moran

Administrative
Law Judge

Emily O. Roberts, Attorney, Office of the Solicitor,
618 Church Street, Suite 230, Nashville, TN 37219

Jennifer Thomas, Attorney, Office of the Solicitor, 618
Church Street, Suite 230, Nashville, TN 37219

James F. Bowman, P.O. Box 99, Midway, WV 25878

[1] On July 21,
2015, this docket was reassigned to the undersigned.

[2] A motion to
approve settlement was e-filed on February 4, 2015. A revised motion to approve
settlement was e-filed on March 25, 2015.

[3] To consult does
not mean that the Secretary must accede to an inspector’s viewpoint. Rather, it
is a matter of acquiring information from the issuing inspector in the face of
a respondent’s assertions.

[4] Per the Mathies
four-part test for determining S&S, the violation in issue is to be
evaluated assuming continued normal mining operations.