Secretary of Labor v. Revelation Energy, LLC

Plain-English summary

MSHA cited Revelation Energy for eight deficiencies in its mine-wide tracking and communication system, including untracked miners, dead tracking pads, limited working text pagers, and missing examination and failure records. The parties proposed reducing the penalty from $2,665 to $2,265 because the operator said some equipment remained functional and fewer than 19 miners would have been affected. Judge William B. Moran found that the motion did not identify which equipment worked, how it addressed the cited failures, how many miners were actually affected, or how that number produced the proposed reduction. He held that a general reference to a legitimate dispute and enforcement responsibility did not supply the factual basis required for settlement approval. The parties were directed to file an adequately supported motion or prepare for hearing.

Decision snapshot

• Cited authority: 30 U.S.C. § 876(b)(2)(F)(ii)
• Outcome: The proposed 15 percent penalty reduction was denied, with an amended motion or hearing preparation required within 10 days.
• Key point: A settlement based on fewer exposed miners must state the supported number and explain how it affects the penalty calculation.

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

December 27, 2017

SECRETARY

OF LABOR,                                :     CIVIL PENALTY PROCEEDING

MINE SAFETY

AND HEALTH                      :

ADMINISTRATION

(MSHA),                        :     Docket No. KENT 2017-0118

Petitioner,                          :     A.C.

No. 15-18198-426021

v.                                                   :    

:    

REVELATION

ENERGY, LLC,                        :     Mine: D-11 Panther

Respondent.                      :

DECISION DENYING SETTLEMENT

MOTION

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. (“Mine

Act”) The parties have filed a joint motion to approve settlement. The originally

assessed amount was $2,665.00, and the proposed settlement is for $2,265.00, a

15% reduction.

The

provision cited in the section 104(a) citation is from the Mine Act, 30 U.S.C.

§ 876(b)(2)(F)(ii).

Section 876 speaks generally to the requirement that there be “Telephone

service or equivalent two-way communication facilities, approved by the

Secretary or his authorized representative, shall be provided between the

surface and each landing of main shafts and slopes and between the surface and

each working section of any coal mine that is more than one hundred feet from a

portal.”  The particular cited subsection, addressing “Accident preparedness

and response, provides at (b)(2)(A) that “Not later than 60 days after June 15,

2006, each underground coal mine operator shall develop and adopt a written

accident response plan that complies with this subsection with respect to each

mine of the operator, and periodically update such plans to reflect changes in

operations in the mine, advances in technology, or other relevant

considerations. Each such operator shall make the accident response plan

available to the miners and the miners’ representatives.” As for subsection

(F)(ii), while (F) deals with “Plan content-specific requirements,” (ii) speaks

to Post accident communications and requires

Not later than 3 years after June

15, 2006, a plan shall, to be approved, provide for post accident communication

between underground and surface personnel via a wireless two-way medium, and

provide for an electronic tracking system permitting surface personnel to

determine the location of any persons trapped underground or set forth within

the plan the reasons such provisions can not be adopted. Where such plan sets

forth the reasons such provisions can not be adopted, the plan shall also set

forth the operator’s alternative means of compliance. Such alternative shall

approximate, as closely as possible, the degree of functional utility and

safety protection provided by the wireless two-way medium and tracking system

referred to in this subpart.

30

U.S.C. § 876 (b)(2)(F)(ii).

Keeping

this statutory provision in mind, it is noted that the issuing inspector was

quite precise in listing 8 (eight) separate deficiencies:

The

operator has failed to follow his approved Emergency response plan approved

10/15/2015. When checked the operator has failed to maintain the AMR MN -6000

mine wide tracking and communication system for this mine fully functional at

all times when miners are underground. The following deficiencies are observed.

(1) 3 miners one third shift and two day shift are not being tracked at all by

the system or manually (2) 5 tracking pads located on the 004 MMU are showing

dead no communication (3) The pad for the 004 MMU refuge alternative is showing

dead no communication (4) The data repeater located in the intake at #10 belt

drive is showing dead no communication this means only the roadway branch

alternate escapeway is functioning inby this point so there is no redundancy

for the system. (5) only 3 text pagers can be found in use that had enough

charge left in the batteries to send and receive a text message. These pagers

should last 12 hours.(6) The operator do[esn’t] have any spare tracking tags or

text pagers for visitors at this mine.(7) The operator do[esn’t] have a current

record of the weekly examinations of the system (8) The operator has no

record of system or component failures or immediate corrective actions taken

for these failures. This condition exposes miners required to work in this mine

to delayed rescue and escape in the event of a mine disaster. The operator

immediately began manually tracking miners in the affected areas and started making repairs to

the system. 

Citation

No. 8383648.

The

entirety of the Secretary’s Motion provides:

Basis of compromise: This

citation was issued for a failure to follow the approved emergency response

plan with regard tracking and communication. Respondent contends that it would

present evidence that only some equipment was nonfunctional and therefore not

all 19 persons on the section would be affected. The Secretary does not

necessarily agree with the Respondent’s position, but the Secretary recognizes

a legitimate factual and legal dispute and believes that settlement of the

civil money penalty is consistent with his enforcement responsibility under the

Mine Act. Therefore, the Secretary agrees to accept a reduced monetary penalty

for this violation.

Motion at 3.

While

the Secretary simultaneously asserts that he “does not necessarily agree with

the Respondent’s position,” he states that he “recognizes a legitimate factual

and legal dispute and believes that settlement of the civil money penalty is

consistent with his enforcement responsibility under the Mine Act.” The problem

with the Secretary’s response is twofold. First, while the mine operator

contends that “only some equipment was nonfunctional,” the citation does not

assert otherwise. Beyond that, the motion does not identify the equipment which

was functional and how that would impact, if at all, the equipment identified

by the inspector as not being maintained. Second, the Secretary does not inform

the factual dispute as to the number of people who would be affected; “not all

19 persons” could mean 18 or some other number. In this regard it is noted that

the Part 100 “number of persons potentially affected” Table provides for 18

penalty points if the number of persons is 10 or more. Even if the number were,

for example, 9, the penalty points allotted would be 16 and the motion, beyond

not claiming what the contended reduced number is, does not inform how that

number would translate to a penalty reduction.

The

Court recognizes that the penalty reduction is modest, but as it has explained

before, Commission approval under section 110(k) is not simply about dollars. In

this instance, the Secretary has merely regurgitated the Respondent’s

contention that it “would present evidence that only some equipment was

nonfunctional and therefore not all 19 persons on the section would be affected.”

Motion at 3.  However, the Secretary, upon informing that he “does not

necessarily agree with the Respondent’s position,” puts forth two reasons in

support of the reduction. First, he advises that he “recognizes a legitimate

factual and legal dispute,” but without identifying what the factual dispute

is, nor explaining how it would impact the penalty. Id. The second

offering to justify the settlement, that the Secretary “believes that

settlement of the civil money penalty is consistent with his enforcement

responsibility under the Mine Act,” is a nullity because it is meaningless in

the context of a section 110(k) settlement approval and merely another way of

echoing his initial stance that the Secretary knows best in settlements, and

need not provide the Commission with a substantive factual basis for the

motion. [1]

Accordingly,

the parties are directed to either submit an amended motion providing the

needed information, as explained above, or to prepare for a hearing. The

parties are directed to advise the Court within 10 (ten) days of their

intentions.

/s/

William B. Moran

William B. Moran

Administrative

Law Judge

Distribution:

Christopher

M. Smith, Esq., United States Department of Labor, Office of the Solicitor,

618 Church Street, Suite 230, Nashville, TN 37219

Joseph

G. Jacobs, Representative, Revelation Energy, LLC, P.O. Box 249, Stanville, KY

41569

/JM

[1] “In reaching

this settlement, the Secretary has evaluated the value of the compromise, the

likelihood of obtaining a better settlement, and the prospects of coming out

better or worse after a trial. In deciding that such a compromise is

appropriate, the Secretary has not given weight to the costs of going to trial

as compared to the possible monetary results that would flow from securing a

higher penalty total. He has, however, considered the fact that he is

maximizing his prosecutorial impact in settling this case on appropriate terms

and in litigating other cases in which settlement is not appropriate. The

Secretary believes that maximizing his prosecutorial impact in such a manner

serves a valid enforcement purpose. Even if the Secretary were to substantially

prevail at trial, and to obtain a monetary judgment similar to and even

exceeding the amount of the settlement, it would not necessarily be a better

outcome from the enforcement perspective than the settlement, in which all

alleged violations are resolved and violations that are accepted can be used as

a basis for future enforcement actions. A resolution of this matter in which

all violations are resolved is of significant value to the Secretary and

advances the purposes of the Act.” Motion at 2.