Secretary of Labor v. Blue Diamond Coal Company

Plain-English summary

The parties proposed resolving six citations for an asserted total of $2,699, including reductions to two damaged-cable-splice citations under 30 C.F.R. § 75.604(b). Judge William B. Moran found that the listed settlement amounts actually totaled $2,749 and that another table also contained a major addition error. He also found that the motion repeated the operator's factual contentions without making clear whether the Secretary considered those assertions plausible, leaving insufficient support for the proposed reductions. In addition, the Secretary's non-attorney representative had not filed the notice and permission request required to practice before the Commission. The Judge denied settlement and directed the parties to submit a corrected, supported motion or prepare for hearing.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.604(b), 75.202(a), 75.517, and 75.400
• Outcome: The settlement motion was denied, with a corrected motion or preparation for hearing required within 10 days.
• Key point: Settlement approval requires correct arithmetic, proper representation, and factual support showing why proposed citation or penalty reductions are reasonable.

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 28, 2017

SECRETARY

OF LABOR,                                :     CIVIL PENALTY PROCEEDING

MINE

SAFETY AND HEALTH                      :

ADMINISTRATION

(MSHA),                        :     Docket No. KENT 2017-0141

Petitioner,                          :     A.C.

No. 15-09636-428765

v.                                                   :    

:    

BLUE

DIAMOND COAL COMPANY,            :     Mine: No. 77

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. The Conference

and Litigation Representative (CLR) has filed a joint motion to approve settlement.

(“Motion”)  Because the CLR has not complied with the practice provisions of

the Commission’s Procedural Rules, [1]

and also because the motion is insufficiently supported and also because the math

doesn’t add up, it must be DENIED.

Six

citations are involved in this docket. One citation, No. 8410728, was assessed

at $615.00 and is proposed for settlement at $350.00, with a modification to

low negligence. Another citation, No. 8410730, was assessed at $484.00 and is

proposed for settlement at $300.00, with no modifications. The Respondent has

agreed to pay the remaining four citations in full, with no modifications. [2]

Per Exhibit A, the total proposed penalty amount was $3,198.00. and the proposed

settlement, according to the CLR, is for $2,699.00. However, adding the

settlement amounts produces a total of $2,749, not the figure the CLR derives. [3]

The

CLR presents the following bases for the proposed reductions and modification:

Regarding

Citation No. 8410728, which alleged a violation of 30 C.F.R. § 75.604(b),

Basis of compromise: A reduction in the level of

negligence on behalf of the operator. There are factual disputes regarding the

likelihood of an injury producing event and the level of negligence on behalf

of the operator. The Respondent asserts there was unlikely [sic] for an

accident to occur that would result in any injuries and there was no negligence

on behalf of the operator. The Respondent argues the shuttle car is equipped

with a cable reel so that miners do not have to handle the cable by hand during

normal mining operations and there was no damage to the inner insulated

conductors. The Respondent further argues that the damaged splice was not

present during the previous weekly electrical examination, that it was located

on the cable reel where it would not have been easily seen, no one had any

knowledge of the condition and would not have had a reason to believe it was

present until the cable was pulled off of the reel and checked during the next

scheduled weekly electrical examination. Therefore the Respondent concludes it

was unlikely for an accident to occur that would result in any injuries and

there was no negligence on behalf of the operator given the aforementioned

facts. For the purpose of settlement, the Petitioner proposes and the Respondent

accepts a reduction in the level of negligence from “Moderate” to “Low”. The

parties have discussed the citation and the surrounding circumstances and in

light of these considerations the Secretary has reevaluated the 110(i) factors,

and the parties propose a revised penalty of $350.00, which is sufficient to

ensure future compliance with the Act.

Motion

at 5.

Regarding

Citation No. 8410730, which also alleged a violation of 30 C.F.R. § 75.604(b),

Basis of compromise: A reduction

in the proposed penalty amount by the Office of Assessments. There are factual

disputes regarding the likelihood of an injury producing event and the level of

negligence on behalf of the operator. The Respondent asserts there was unlikely

for an accident to occur [sic] that would result in any injuries and there was

no negligence on behalf of the operator. The Respondent argues the bolt machine

is equipped with a cable reel and that miners wear rubber gloves in accordance

with written company policy when moving or hanging the cable. The Respondent

further argues that the damaged splice was not present during the previous

weekly electrical examination and that no one had any knowledge of the

condition or have had a reason [sic] to believe it was present until the cable

was checked during the next scheduled weekly electrical examination. Therefore

the Respondent concludes it was unlikely for an accident to occur that would

result in any injuries and there was no negligence on behalf of the operator

given the aforementioned facts. For the purpose of settlement, the Petitioner

proposes and the Respondent accepts a reduction in the proposed penalty amount

by the Office of Assessments. The parties have discussed the citation and the

surrounding circumstances and in light of these considerations the Secretary

has reevaluated the 110(i) factors, and the parties propose a revised penalty

of $300.00, which is sufficient to ensure future compliance with the Act.

Motion

at 6.

Discussion

As noted, six

citations are at issue in this docket. Four were settled for the amount

originally proposed by the Secretary, and the other two are proposed for

reduction and/or modification, as detailed above. Apart from the twice

incorrectly stated math, substantively, in support of the proposed changes for

both of these citations, the Secretary states: “The parties have discussed the

citation and the surrounding circumstances and in light of these considerations

the Secretary has reevaluated the 110(i) factors, and the parties propose a

revised penalty…which is sufficient to ensure future compliance with the Act. ”

Motion at 5, 6.     The Motion is insufficient to meet the Court’s obligations

under section 110(k) of the Mine Act.

The Court has

previously advised the Secretary that in most instances it cannot make the leap

to infer that he acknowledges the plausibility of a Respondent’s

representations in support of proposed reductions in civil penalties. It is not

burdensome, assuming that such acknowledgements are accurate, for the Secretary

to include language to the effect that the Respondent’s contentions present

legitimate, substantial, factual disputes which are genuinely in issue and

which disputes can only be resolved through the hearing process. For example,

in WEVA 2017-0458, the Court advised the Secretary on December 22, 2017 that it

needs an acknowledgement, if

appropriate, with words to the effect that the Respondent’s arguments are at

least plausible. For [a] frame of reference, but not in any way intended as a

directive as to the substance of the Secretary’s response, this is sometimes

achieved through a statement from the Secretary, employed in previous motions,

that the Secretary ‘recognizes that these facts are in dispute and raise

factual and legal issues which can only be resolved by a hearing before the

Commission, or by the parties reaching a compromise of the penalty proposed by

the Secretary, or by a modification of the characterization of the citation to

reflect a lower level of gravity or negligence or both. The Secretary

recognizes that the ALJ may find some merit in the facts and contentions raised

by Respondent [and accordingly] [t]he Secretary agrees to accept a reduced penalty.’

The Court also notes that a key line in such submissions is the Secretary’s

remark that “the ALJ may find some merit in the facts and contentions raised by

Respondent.’ While the Court does not prescribe specific language that is

needed, in this instance the Secretary offers little to help the Court

determine whether to accept or reject the instant motion. Short of language

along these lines, the Court is left only with making an inference about the

Secretary’s view of the Respondent’s arguments. The Court does not believe that

it is too much to ask for the Secretary to acknowledge, again if that is the

Secretary’s genuine view, that the Respondent’s contentions have plausibility

and therefore are not in the realm of being farfetched and completely

unsupportable factual contentions.

November

22, 2017 email from the Court to the parties in WEVA 2017-0458.

The same principles

apply in this instance. Accordingly, for the reasons set forth above, the Joint

Motion is DENIED. The parties are directed to either submit an

amended motion providing the needed information, including the correct math, a

notice of appearance, with a request for permission to practice in this matter,

and substantive support, all 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:

Gary

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

MSHA, 3837 S. US Hwy 25E, Barbourville, KY 40906

John R.

Opperman, Blue Diamond Coal Company, 3228 Summit Square Place, Suite 180,

Lexington, KY, 40509

/JM

[1] The Secretary

has delegated a number of civil penalty petitions to Conference and Litigation

Representatives (“CLRs”). Per 29 C.F.R. §2700.3 (b)(4), addressing

non-attorneys, “Other persons” may practice before the Commission “with the

permission of the presiding judge or the Commission.” According to the official

file, the CLR, Mr. Oliver, never filed a notice of limited appearance. Therefore,

the Secretary has not complied with this practice provision.

[2] Citation Nos. 8410429

and 8318993 alleged violations of 30 C.F.R. § 75.202(a);

Citation No. 8410721 alleged a violation of 30 C.F.R. § 75.517; and Citation

No. 8410722 alleged a violation of 30 C.F.R. § 75.400.

[3] The Motion’s

math is wanting at page 4 of the submission as well. There, in a table listing

four of the six citations, the CLR calculates a total of $800.00, but the

assessed penalties actually add up to $2,099.00.