Secretary of Labor v. Perry County Resources

Plain-English summary

Perry County Resources and the Secretary proposed resolving four citations with a total penalty reduction from $1,470 to $1,204. The record showed that MSHA had issued a section 104(b) failure-to-abate order connected to an admitted roof-support citation, but the order and related documents were missing. The Secretary argued that disclosure was unnecessary because the underlying citation would be paid as assessed and the settlement did not compromise it. Judge William Moran concluded that settlement review required a complete public record for every citation and order in the docket. He ordered the Secretary to disclose all documents concerning the section 104(b) order and did not rule on settlement approval in this order.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.202(a), 75.380(d)(1), and 75.1722
• Outcome: The Secretary was ordered to disclose the documents associated with the section 104(b) order; the settlement motion remained unresolved.
• Key point: The judge viewed a related failure-to-abate order as part of the record needed to review the proposed settlement.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF ADMINISTRATIVE
LAW JUDGES

1331 PENNSYLVANIA
AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

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

SECRETARY OF LABOR

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Petitioner

v.

PERRY COUNTY RESOURCES,

Respondent

CIVIL PENALTY PROCEEDING(S)

Docket No. KENT 2022-0024

A.C. No. 15-19015-546383

Mine: E4-2

ORDER

Before the Court
is the Secretary’s Motion to Approve Settlement of the citations and order
involved in this matter. The parties move to modify one of the citations, as
stated below. The penalty would be reduced accordingly, from the original
assessed amount of $1,470.00 to $1,204.00 .

Citation/Order No.

Originally Proposed Assessment

Settlement Amount

Modification

KENT 2022-0024

9282163

$302.00

$302.00

Admitted violation of 30 C.F.R.§75.380(d)(1) involving
primary escapeway on 1 West Mains

No modification, paid as assessed

9282162

$336.00

$336.00

Admitted violation of 30 C.F.R.§75.202(a), also involving
primary escapeway on 1 West Mains

No modification, paid as assessed but 104(b) order issued
and not in the record

9282123

$530.00

$264.00

Modified
to “Low” negligence, 50% penalty reduction

Yet
another escapeway related violation, this time involving the secondary
escapeway – directional lifeline not maintained

9282125

$302.00

$302.00

Admitted violation of 30 C.F.R. §75.1722 moving machine
part tailpiece guard not maintained

No modification, paid as assessed

Total

$ 1,470.00

$ 1,204.00

18% Total Penalty Reduction 

The Court reviewed the Motion and the draft Order
submitted by the Secretary. Upon doing so, a problem was revealed. The record
for this docket is not complete because the official record for Citation No.
9282162 is missing the documents regarding a section 104(b) order issued in
connection with that citation. The Secretary may not elect to hide official
documents in connection with Mine Act enforcement actions from public view.

Before addressing the missing
section 104(b) order, it is necessary to step back and examine the underlying
section 104(a) citation. Citing a violation of 30 C.F.R. §75.202(a), that
standard, titled “Protection from falls of roof, face and ribs,” requires that
“[t]he roof, face and ribs of areas where persons work or travel shall be
supported or otherwise controlled to protect persons from hazards related to
falls of the roof, face or ribs and coal or rock bursts.” 30 C.F.R. §75.202(a).

The MSHA inspector issued the Citation, No. 9282162,
on October 25, 2021, and informed under the condition or practice section that
“[t]he roof bolt plates are missing, due to rusting, on several roof bolts
along the primary escapeway entry on the 1 West Mains. The missing plates
extend from crosscut #5 to crosscut #22 in various locations. This condition
exposes miners to hazards of roof fall dangers. Draw rock has fallen into
the roadway in these locations. The weekly examiner travels this area one time
a week .” (emphasis added).

In his evaluation, the Inspector marked the
injury as reasonably likely to occur, resulting in lost workdays or restricted
duty. Accordingly, he listed the violation as “significant and substantial.” The
negligence was marked as “moderate.” Though originally the inspector marked the
termination of the violation to be due the next day, October 26 th ,
thereafter the operator requested additional time to abate the violation for
“spot bolt[ing] the roof in the cited location,” with the delay needed to “get[]
the bolt machine to the area.” The inspector granted the additional time, with
the new termination date of October 29, 2021 by 3 p.m.

The record does not reveal whether the extended
termination date was met, though one may presume it was not, because Exhibit A
for this docket reveals that a section 104(b) order was issued. It is that
information which is missing from the record and about which the Secretary has
refused to supply it. The Court requested that the Secretary supply the missing
documents related to the section 104(b) order. The Secretary’s non-attorney
representative, a conference and litigation representative, (“CLR”), Gary W.
Oliver, refused to supply the missing documentation. In an email, Mr. Oliver
stated “[t]he (b) order requested is not related to the single violation
modified in this settlement, Citation No. 9282123. The underlying violation to
the (b) order, Citation No. 9282162 has been affirmed and as reflected to the
Exhibit A, the good faith abatement discount was not given. Therefore there is
no compromise of penalty for Citation No. 9282162 requiring the court’s
approval pursuant to Section 110(k). The Secretary requests an order approving
or denying the motion to approve settlement as filed.” E-mail from Gary W.
Oliver, CLR, MSHA (May 31, 2022).

The Court responded that it did not
see the matter as the CLR did, informing that “each citation/order, being part
of the docket, is within [the Court’s] authority to conduct an informed review.
[The Court added] that it doesn’t speak well of MSHA to hide information under
cover of a settlement. As [the Court] told [the CLR] in an earlier email today,
the order is part of the public record. It should have been in the official
record, yet it is not there. If [the CLR] do[es] not want the order to see the
light of day, [the Court] think[s] that is an unwise course of action as the
representative charged with protecting the safety and health of miners. As
former Supreme Court Justice Louis Brandeis stated: ‘sunlight is said to be the
best of disinfectants.’

If you refuse to comply, [the Court] will have no choice but
to file a FOIA request and in [the Court’s] ruling on the motion to approve
settlement [it would have] to take note of the agency’s unwillingness to
provide public record information for this admitted violation.” June 14, 2022
email from the Court to the parties.

Thereafter, on June 13, Emily Toler
Scott, an attorney for the Secretary, entered her appearance. [1]

DISCUSSION

The Court does not believe that the fact a
violation is paid in full, with no modifications made to the issuing
inspector’s evaluation, is the end of the matter. The principle behind this
view is very basic, in carrying out its review responsibilities under 30 U.S.C.
§820(k), the Court is obligated to be fully informed about the circumstances
surrounding the issuance of a citation or an order. Citation No. 9282162 is
part of this docket, but the documentary record concerning this admitted
violation is incomplete. This is because a section 104(b) order was issued by
the inspector in connection with that Citation, No. 9282162. The Secretary may
not decide to selectively secrete such information from
the Court, the public and especially from the miners it is charged to protect. From
this Court’s perspective, such a stance is inimical to the spirit of the Mine
Act.

A Section 104(b) order is an important
feature of the Mine Act. Section 104(b) of the Mine Act states:

If,
upon any follow-up inspection of a coal or other mine, an authorized
representative of the Secretary finds (1) that a violation described in a
citation issued pursuant to subsection (a) has not been totally abated within
the period of time as originally fixed therein … and (2) that the period of
time for abatement should not be further extended, he shall determine the
extent of the area affected by the violation and shall promptly issue an order
requiring the operator of such mine or his agent to immediately cause all
persons, except those persons referred to in subsection (c), to be withdrawn
from, and to be prohibited from entering, such area until an authorized
representative of the Secretary determines that such violation has been abated.

30 U.S.C. § 814(b).

As the Commission has noted, such orders
have significance in their own right. It has observed that :

First of
all, section 105(a), by its terms, does not distinguish between the different
types of orders that can be issued under section 104. Absent any language in
the statute suggesting that the Secretary cannot propose a penalty in
connection with a section 104(b) order, we will not interpret the phrase “order
under section 104” in section 105(a) to exclude section 104(b) orders. 

Secondly,
contrary to her claim, the Secretary may indeed assess a separate penalty for
the failure to abate a violation. Section 105(b)(1)(A) of the Mine Act provides
in pertinent part:

If the
Secretary has reason to believe that an operator has failed to correct a
violation for which a citation has been issued within the period permitted for
its correction, the Secretary shall notify the operator by certified mail of
such failure and of the penalty proposed to be assessed under section 110(b) by
reason of such failure and that the operator has 30 days within which to notify
the Secretary that he wishes to contest the Secretary’s notification of the
proposed assessment of penalty…. 30 U.S.C. § 815(b)(1)(A). Consequently,
section 110(b) of the Act and MSHA’s regulations authorize the Secretary to
assess steep daily penalties. See 30 U.S.C. § 820(b); 30 C.F.R. §
100.5(c) (“Any operator who fails to correct a violation for which a citation
has been issued under section 104(a) of the Mine Act within the period
permitted for its correction may be assessed a civil penalty of not more than
$6,500 for each day during which such failure or violation continues.”).

Moreover,
the fact that a withdrawal order has been issued increases the likelihood that
such a penalty will be assessed. The legislative history of the Mine Act states
that under section 105(b)(1)(A), like under section 105(a):

[T]he
Secretary is to similarly notify operators and miners’ representatives
when he believes that an operator has failed to abate a violation within the
specified abatement period. In most cases, a failure to abate closure order
will have been issued pursuant to Section [104(b)] . The notice of proposed penalty
to operators in such cases shall state that a [ 104 ( b )] order
has been issued and the penalty provided by Section [110(b)] of the Act
shall also be proposed. This penalty shall be proposed in addition to
the penalty for the underlying violation required by Section [110(a)] of
the Act. S. Rep. No. 95-181, at 34-35 (1977), reprinted in Senate
Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal
Mine Safety and Health Act of 1977 , at 622-23 (1978).

In addition,
even if no separate penalty for failure to abate a violation is assessed, the
failure to abate allegation upon which a section 104(b) withdrawal order rests,
if established, increases the amount of the penalty that is ultimately assessed
for the underlying violation. As Judge Zielinski recognized in his first
decision, ‘the demonstrated good faith of the person charged in attempting to
achieve rapid compliance after notification of a violation is one of the
factors that the Commission must consider in fixing the amount of a civil
penalty.’ 28 FMSHRC at 413 (quoting section 110(i) of the Mine Act, 30 U.S.C. §
820(i)). Thus, the sanction for a failure to abate is not only a withdrawal
order, but, likely, a higher penalty when the Secretary eventually assesses a
penalty for the original violative condition that allegedly was not abated in a
timely fashion. See NAACO Mining Co. , 9 FMSHRC 1541, 1545 (Sept. 1987) (‘Under
sections 104(b) and 110(b), if the operator does not correct the violation
within the prescribed period, the more severe sanction of a withdrawal order is
required, and a greater civil penalty is assessed.’).

UMWA
v. Maple Creek Mining , 29 FMSHRC 583, 592-594 (July 2007) (emphases added).

Per
the above decision, the Commission recognized the independent importance of
104(b) orders may be the subject of a penalty in their own right, citing
section 104(b)(1)(A). [2] The
legislative history, as also cited by the Commission, makes this plain: “[t]he
notice of proposed penalty to operators in such cases shall state that a
[ 104 ( b )] order has been issued and the penalty
provided by Section [110(b)] of the Act shall also be proposed. This penalty
shall be proposed in addition to the penalty for the underlying
violation required by Section [110(a)] of the Act. ” Id. at 593. (emphases
added) .

Though
no additional reasons are needed to require disclosure of the (b) order in this
matter, the record does not reveal if the Secretary met his obligation to
notify the miners’ representatives when, as here, he believed that an operator
has failed to abate a violation within the specified abatement period.

This
Court is well aware that its review of settlements is presently cabined within
the terms of the Commission’s decisions in The American Coal Co. , 40
FMSHRC 983 (Aug. 2018) (“ AmCoal ”) and Rockwell Mining, LLC , 40
FMSHRC 994 (Aug. 2018) and that under those decisions the Court’s review role
has become statistically perfunctory. [3] However,
there is still an obligation and duty to examine each citation and
order within a submitted docket, even if the citation is not contested and
paid as originally assessed. The responsibility to ensure that there is a
complete record is separate and apart from, and not mutually exclusive to,
the review of violations that have settled, whether such settlements are for
the full amount proposed or some lesser amount. [4]

Frankly, the Court is at a loss to understand
why the Secretary of Labor is not in full support of providing the full
record of the enforcement actions taken in connection with an admitted
104(a) citation. In this matter that involves hiding the inspector’s issuance
of a 104(b) order in connection with that citation. The apparent decision to
secrete such information from the Court, the public and especially from the
miners it is charged to protect is perplexing and at odds with the admonition
from several federal courts invoking Justice Louis D. Brandeis’ remark that “Sunlight
is said to be the best of disinfectants.” See, for example , Argus v.
U.S. Dept Agriculture, 740 F.3d 1172 (8th Cir. 2014), wherein
Argus invoked the federal law meant to bring disclosure sunlight to the
government bureaucracy, in its request to see spending information from the
U.S. Department of Agriculture under the Freedom of Information Act, 5
U.S.C. § 552. To the same effect as the Secretary has done here, the
Department of Agriculture, with little explanation, refused disclosure. Reversing
the lower court’s determination that the information sought was exempt from
disclosure, the Eighth Circuit took note of Justice Louis D. Brandeis’ remark about
the disinfecting benefit of sunlight. Id. at 1173, citing Other
People’s Money 92 (1914).

For these reasons, the Court ORDERS the
Secretary to disclose all documents pertaining to the issuance of the section
104(b) order associated with Citation No. 9282162.

/s/
William B. Moran

William B. Moran

Administrative Law Judge

Distribution:

Emily Toler Scott, Esq., Acting Counsel for Appellate
Litigation, U.S. Department of Labor

Office of the Solicitor, Division of Mine Safety &
Health, 201 12th Street South, Suite 401

Arlington, VA 22202 [email protected]

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

3837 S. US Hwy 25E, Barbourville,
KY 40906 [email protected]

Gregory Q. Jensen, Perry County
Resources, LLC, P.O. Box 606

Fishers, IN 46038 [email protected]

[1] On behalf of the
Secretary, on June 13, 2022, Attorney Toler Scott filed a Supplemental Motion
to Approve Settlement or Motion to Certify for Interlocutory Review. That
motion will be addressed in a separate order.

[2] In that
connection, as noted above, the Commission observed that in circumstances of
such failures, the Secretary is to notify the operator of such failure and of
the penalty proposed to be assessed under section 110(b) by reason of such
failure. Under such circumstances the Secretary may assess steep, daily,
penalties. Those penalties may now be up to $8,101.00 per day. 30 C.F.R. Part
100.5(c) (2021).

[3] As Commission
Chairman Arthur Traynor and Commissioner Mary Lu Jordan have noted, judges
applying this precedent are able to approve 99.96% of settlement motions
submitted for their review. See AmCoal I, 38 FMSHRC at 1977 n.7 (noting
that in a five-year period from approximately 2011 to 2016, Commission Judges
approved 38,501 settlements and denied only 17); Hopedale Mining, 42
FMSHRC 589, 604, n.2 (Aug. 2020) (Commissioners Jordan and Traynor, dissenting).

[4] The 104(b) Order,
presently hidden from the record, is of additional concern because five minutes
after issuing Citation 9282162, the inspector issued another Citation, No.
9282163, citing a separate safety hazard in the same escapeway.