Secretary of Labor v. Rex Coal Company, Inc. (ALJ decision, September 13, 2017)

Plain-English summary

MSHA cited Rex Coal for loose ribs under 30 C.F.R. § 75.202(a) and originally proposed a $285 penalty. The parties explained that the foreman had completed the required preshift examination without observing warning signs, the inspector could not determine how long the isolated condition existed, and roof pressure could have changed after the examination. Judge William B. Moran found that these specific disputed facts supported the compromise and satisfied the Mine Act's settlement-review requirements. He approved a reduced $228 penalty and dismissed the case upon payment.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.202(a)
• Outcome: The settlement was approved, reducing the penalty from $285 to $228.
• Key point: A settlement reduction is supportable when the motion provides specific facts showing a genuine dispute about the operator's negligence.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania
Avenue, NW, Suite 520N

Washington, DC
20004-1710

Phone: (202) 434-9933
| Fax: (202) 434-9949

September 13, 2017

SECRETARY
OF LABOR,                                :     CIVIL PENALTY PROCEEDING

MINE
SAFETY AND HEALTH                      :

ADMINISTRATION
(MSHA),                        :     Docket No. KENT 2016-0455

Petitioner                                       :     A.C. No. 15-18869-415097

:

v.                                       :    

:    

:    

REX COAL
COMPANY INC,                           :     Mine: CVB No. 1

Respondent                                   :

DECISION APPROVING SETTLEMENT
MOTION

WHICH COMPLIES WITH SECTION
110(k) OF THE MINE ACT

Before: Judge
Moran

This
case is before the Court upon a petition for assessment of a civil penalty under section 105(d) of the Federal Mine Safety and Health Act of 1977. The parties have filed a joint motion to approve settlement [1] which motion provides sufficient information to support the proposed penalty reduction; the originally assessed amount was $285.00, and the proposed settlement is for $228.00.

The
parties presented the following basis for the proposed reduction of the single citation at issue: [2]

Basis of compromise: A reduction
in the amount of the proposed penalty by the Office of Assessments. There are factual disputes regarding the level of negligence on behalf of the operator and/or an agent of the operator. The Respondent contends that the operator was unaware of the cited condition. The Pre-shift examinations were being conducted as required by law. According [to] the foreman who conducted the preshift for the OU 10 MMU, the ribs were not showing any signs of taking weight in any areas from the feeder inby to the face of each working place. The cited condition was that the coal ribs were not being adequately controlled at crosscut # 33 in the No. 3 Entry loose ribs were present. On the outby corner of the crosscut between No. 3 and No. 4 Entries the rib was 12 feet in length and 8 inches in thickness. On the inby corner of the crosscut a loose rib was present that measured after the rib was pulled down 18 inches thick, 3 feet in length and 2 ½ feet in height. Additionally, the Petitioner stated in the daily inspection notes for this citation that the mining height ranged from 8 foot to 12 foot and consisted of rock and coal partings, as we11 as, 1700 to 1900 foot of cover with sandstone roof rolling in and out across the section and that the coal ribs are constantly taking pressure due to the amount of cover over the coal seam. However, the Petitioner was unable to determine how long the cited condition had existed and stated that it was undetermined. Furthermore, the Petitioner stated that the rest of the ribs on the 0010 MMU appeared ok. Therefore, based on the facts presented, The Secretary is requesting a revised penalty based on a justification that the condition cited was an isolated incidence/hazard which occurred just as likely as not after the foreman had pre-shifted the area. Especially, with the amount of cover and including the sandstone rolling in and out across the 0010 MMU, it is probable that the ribs took on more pressure and weight after the examination of this specific area was completed. Also, the Petitioner issued the cited condition at 10:55am which was long after the pre-shift examination was conducted. Consequently not only the operator but the Section Foreman would not have been aware. For the purpose of settlement, the Petitioner proposes and the Respondent accepts a reduction in the proposed penalty by the Office of Assessments. Based on the facts presented, the ALJ may find merit with the Respondent's contention that the negligence of the violation should have been less than was originally evaluated. A reduction in the proposed penalty assessed is reflected by the compromised penalty amount.

Joint Motion at 3-4.

The
Court has consid­ered the repre­sen­ta­tions submit­ted in this case, and takes note   that this motion is an example of the Secretary providing genuine facts in dispute, and an acknowledgment that the Respondent presented plausible contentions, which weighed upon and supported a reconsideration of the proposed penalty. The motion also demonstrates that it is not burdensome for the Secretary to present the kind of information the Commission needs in order to carry out its responsibility under section 110(k) of the Mine Act.  With the information provided in the motion, the Court is able to conclude that the prof­fered settle­ment is appropriate under the criteria set forth in section 110(i) of the Act.

The settlement amounts are as
follows:

Citation
No.               Assessment          Settlement Amount

8413818                           $285.00                             $228.00

TOTAL:                          $285.00                             $228.00

WHEREFORE , the motion for approval of
settlement is GRANTED .

It is ORDERED that Respondent
pay a penalty of $ 228.00 within 30 days of this order. [3] Upon receipt of payment, this case is DISMISSED .

/s/ William B. Moran

William B. Moran

Administrative
Law Judge

Distribution:

Peggy M.
Langley, CLR, U. S. Department of Labor, MSHA, 3837 S. U.S. Hwy 25E, Barbourville, KY 40906

Ronnie
Brock, Rex Coal Company, Inc., 100 Paula Drive, Pineville, KY 40977

[1] It is
DETERMINED that the Conference and Litigation Representative (CLR) is accepted to represent the Secretary in accordance with the notice of unlimited appearance she has filed with the penalty petition. Cyprus Emerald Res. Corp. , 16 FMSHRC 2359 (Nov. 1994).

[2] Citation No.
8413818 alleged a violation of 30 C.F.R. § 75.202(a), and stated that loose ribs presented the risk of a rib fall. Citation No. 8413818.

[3] Payment should
be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P.O. BOX 790390, ST. LOUIS, MO 63179-0390