Green River Coal Company, Inc. (ALJ decision, October 20, 1987)

Plain-English summary

Green River Coal Company agreed to settle four civil penalty proceedings involving coal accumulations, conveyor equipment, ventilation, methane, accident-site preservation, and roof control at its Green River No. 9 Mine. Judge George A. Koutras found the settlements reasonable and in the public interest, including reduced amounts for several citations. The approved settlements totaled $6,950, payable within 30 days, after which the proceedings would be dismissed. The citations and orders remained standing as issued under the parties' agreement.

Decision snapshot

• Governing provisions: 30 C.F.R. §§ 75.400, 75.1725, 75.1722, 75.301, 75.308, 75.403, 75.316, 75.200, and 50.12, plus 30 U.S.C. § 820(i)
• Outcome: Settlements across four dockets were approved for civil penalties totaling $6,950.
• Key point: The judge approved reduced civil penalties after reviewing the statutory assessment criteria and the parties' explanations for settlement.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. GREEN COAL
DDATE:
19871020
TTEXT:

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Federal Mine Safety and Health Review Commission Office of Administrative Law Judges

SECRETARY OF LABOR,
CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket No. KENT 86-142
PETITIONER
A.C. No. 15-13469-03564

v. Docket No. KENT 87-32
A.C. No. 15-13469-03575
GREEN RIVER COAL COMPANY,
INC.,
Docket No. KENT 87-33
RESPONDENT
A.C. No. 15-13469-03579

Docket No. KENT 87-79
A.C. No. 15-13469-03588

Green River No. 9 Mine

DECISIONS

Appearances: Mary Sue Ray, Esq., Office of the Solicitor, U.S. Department of Labor, Nashville, Tennessee, for the Petitioner;
Flem Gordon, Esq., Gordon & Gordon, Owensboro, Kentucky, for the Respondent.

Before: Judge Koutras

Statement of the Proceedings

These proceedings concern proposals for assessment of civil penalties filed by the petitioner against the respondent pursuant to section 110(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 820(a), seeking civil penalty assessments for 11 alleged violations of certain mandatory safety standards found in Part 75, Title 30, Code of Federal Regulations, and one alleged violation of the accident reporting requirements of 30 C.F.R. 50.12.

The respondent filed timely answers and notices of contests challenging the alleged violations and MSHA's "special assessments" which formed the basis for the proposed civil

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penalty assessments filed by the petitioner in these proceedings.

The respondent's answers also included challenges to the merits of a section 107(a) imminent danger order upon which three violations in issue were based (KENT 86Ä142); the merits of two section 107(a) imminent danger orders issued in conjunction with four section 104(a) citations (KENT 87Ä79); the merits of a section 104(d)(1) order on which the petitioner's civil penalty proposal is based (KENT 87Ä32); and the merits of a section 104(d)(1) Order No. 2216256, included as part of the petitioner's proposals for assessment of civil penalties.

These cases were scheduled for hearings on the merits in Owensboro, Kentucky, during the hearing term September 1Ä3, 1987. In Docket No. KENT 86Ä142, the parties filed a pretrial motion proposing a settlement disposition of the case pursuant to Commission Rule 30, 29 C.F.R. 2700.30. However, in view of the failure by the parties to submit full information regarding the six statutory civil penalty assessment criteria found in section 110(i) of the Act, a dispositive ruling on the motion was held in abeyance, and the parties were afforded an opportunity to present the information on the record at the hearings.

With regard to the remaining cases, when the dockets were called for trial, respondent's counsel informed me that upon further consultation with a representative of the respondent who was present in the courtroom, the respondent decided not to go forward with the cases and decided to settle the matters with the petitioner. The parties were afforded an opportunity to present their arguments in support of their settlement proposals on the record in each of the cases. The violations, initial assessments, and the proposed settlement amounts are as follows:

DOCKET NO. KENT 86Ä142
30 C.F.R.
Citation No. Date Section Assessment Settlement

2214778 04/16/86 75.400 700 700 2214779 04/16/86 75.1725 700 700 2214780 04/16/86 75.1722 400 400

$1,800
$1,800

DOCKET NO. KENT 87Ä79
30 C.F.R.
Citation No. Date Section Assessment Settlement

2216502 10/21/86 75.301 800 500 2216503 10/21/86 75.308 800 500 2216504 10/21/86 75.403 600 500 2216514 11/17/86 75.316 600 500

$2,800
$2,000

DOCKET NO. KENT 87Ä32

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30 C.F.R.
Order No. Date Section Assessment Settlement

2216241 07/15/86 75.400 800 800

DOCKET NO. KENT 87Ä33

Citation/Order No. Date 30 C.F.R.
Section Assessment Settlement

2216247 07/28/86 75.400 $1,000 $1,000 2216814 08/02/86 50.12 100 50 2216816 08/02/86 75.400 700 700 2216256 08/05/86 75.200 600 600

$2,400
$2,350

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Issues

The issues presented in these proceedings are whether the respondent violated the cited mandatory safety standards as stated in the contested citations and orders, and if so, the appropriate civil penalty assessments which should be assessed for those violations based on the criteria found in section 110(i) of the Act. Additional issues raised by the parties are discussed and disposed of in the course of these decisions. Applicable Statutory and Regulatory Provisions

1. The Federal Mine Safety and Health Act of 1977, Pub.L.
95Ä164, 30 U.S.C. 801 et seq.

2. Section 110(i) of the 1977 Act, 30 U.S.C. 820(i).

3. Commission Rules, 20 C.F.R. 2700.1 et seq.

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Procedural Rulings

The parties were advised that the issues raised as part of the respondent's answers with respect to the merits of the previously mentioned section 107(a) imminent danger orders, and the "unwarrantable failure" section 104(d)(1) orders were not viable issues in these civil penalty proceedings. The parties acknowledged their understanding of my bench ruling, and no objections or exceptions were noted.

With regard to the respondent's challenge to MSHA's "special assessment" civil penalty procedures found in Part 100, Title 30, Code of Federal Regulations, the parties were advised that MSHA's Part 100 civil penalty procedures are not controlling in these de novo civil penalty proceedings, and that any civil penalty assessments levied by me will be on the basis of the record made in these cases, including any credible testimony or evidence presented with respect to the alleged violations, and the information and evidence presented with respect to the six statutory civil penalty assessment criteria set forth in section 110(i) of the Act.

Preliminary Matter

With regard to Dockets KENT 87Ä32 and KENT 87Ä33, the parties were advised that according to a memorandum dated August 19, 1987, from MSHA's Civil Penalty Compliance Office, to the Commission's Docket Office, MSHA's records reflect that it has received payment from the respondent for the proposed civil penalty assessments made in these two cases.

Upon consultation with the respondent's assistant Safety Director, Grover Fishbeck, who was present at counsel table, respondent's counsel confirmed that the respondent had in fact tendered payment to MSHA for the civil penalties in Dockets KENT 87Ä32 and KENT 87Ä33. Counsel asserted that he was unaware of the payments, that they were made in error, and that the mistaken payments should not be construed as a waiver of the respondent's rights and intentions to contest the violations in question.

Stipulations

With regard to Dockets KENT 87Ä32, KENT 87Ä33, and KENT 87Ä79, the parties submitted the following written relevant stipulations:

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1. For the calendar year 1986, respondent produced 1.7 million tons of coal.

2. Respondent currently has 384 employees.

3. The proposed civil penalty assessments for the violations in question will not seriously affect the respondent's ability to continue in business.
4. The respondent acted in good faith in correcting or abating all of the alleged violative conditions.

The parties also agreed that notwithstanding the settlements which have been approved in all of the cases, all of the citations and orders which are the subject of these proceedings will stand as issued, including the inspector's "S & S", negligence, and gravity findings. They also agreed that I may properly consider the information concerning the respondent's history of prior violations as reflected in the pleadings filed by MSHA, namely the information which appears on MSHA's Proposed Assessment Form 100Ä179, with regard to the number of prior assessed violations and the number of inspection days during which those violations were issued.

Discussion

DOCKET NO. KENT 86Ä142

This case concerns three section 104(a) "significant and substantial" (S & S) citations issued by MSHA Inspector George W. Siria on April 16, 1986. The citations relate to the accumulation of loose coal and coal dust, inoperative conveyor belt rollers, and an inadequately guarded tail roller on the slope belt conveyor of the subject mine. In particular, the inspector cited violations of mandatory safety standards 30 C.F.R. 75.400, 75.1725 and 75.1722. He also found that the cited conditions, taken collectively, constituted an imminent danger, and he issued a section 107(a) order on April 16, 1986, withdrawing miner's from the cited slope belt areas.

By motion received August 10, 1987, respondent's counsel filed a request to dismiss this case on the ground that the respondent agreed to pay the proposed civil penalty assessments in full. On August 13, 1987, I issued an order denying the motion, and directed the parties to file an appropriate

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settlement motion pursuant to Commission Rule 30, 29 C.F.R. 2700.30.

On August 25, 1987, the parties filed a joint motion for approval of a proposed settlement of the case, and the respondent agreed to pay the proposed civil penalty assessments in full. The parties stated that the cited conditions were corrected and abated at 5:00 p.m., April 17, 1986, and that the imminent danger order was lifted at that time. They also agreed that the citations should be affirmed without further modification.

In view of the fact that the settlement motion failed to include any information with respect to the six statutory criteria set forth in section 110(i) of the Act, my dispositive ruling was held in abeyance in order to afford the parties an opportunity to present the information on the record during the course of the scheduled hearings.

During the course of the hearings, the parties stipulated to the following:

1. The violations occurred as stated in the subject citations.

2. For the calendar year 1986, the respondent produced 1.7 million tons of coal.

3. For calendar year 1986, the respondent had approximately 384 employees.

4. The proposed civil penalty assessments will not adversely affect the respondent's ability to continue in business.

5. The respondent exhibited good faith in timely abating the cited conditions.

Since the parties have agreed that the citation may be affirmed as issued, I adopt the inspector's negligence, gravity, and "S & S" findings on these issues, and take note of the respondent's history of prior violations as stated in the petitioner's pleadings reflecting 127 prior assessed violations during 450 inspection days during the 24Ämonth period prior to the issuance of the citations in question.

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DOCKET NO. KENT 87Ä79

This case concerns four section 104(a) "significant and substantial" (S & S) citations issued by MSHA Inspector James E. Franks on October 21, and November 17, 1986. The three citations issued on October 21, relate to an inadequate quantity of air, excessive levels of methane, and inadequate rock dusting. The inspector cited violations of mandatory safety standards 30 C.F.R. 75.301, 75.308, and 75.403. He also found that the cited conditions, taken collectively, constituted an imminent danger, and he issued a section 107(a) order withdrawing miners from the cited areas.

The remaining citation issued by the inspector on November 17, cites a violation of mandatory safety standard 30 C.F.R. 75.316, and relates to a violation of the respondent's approved mine ventilation plan in that the inadequate ventilation resulted in the presence of excessive methane levels in an abandoned area of the mine. In conjunction with this citation, the inspector issued a section 107(a) imminent danger order on November 17, ordering the withdrawal of miners from the areas where methane was detected. The record reflects that the citation was terminated on the same day that it was issued after adequate ventilation was restored, and the inspector subsequently modified the citation to change the number of mine personnel exposed to the hazard from 24 to 12.

The respondent asserted that the imminent danger order issued by the inspector was invalid in that the air bottle sample taken by the inspector to support the order, when tested, reflected the actual presence of only a maximum of 1.3 percent methane, which was well within MSHA's standards. Since MSHA's proposed civil penalties for the three citations which the inspector believed collectively constituted an imminent danger were "specially assessed" because of the issuance of the order, respondent's counsel disputed the validity of those assessments based on an "invalid order."

Petitioner's counsel agreed that the bottle sample reflected the presence of 1.33 percent methane in the affected areas. In further mitigation of the citations, counsel stated that the respondent cooperated fully with the MSHA inspector in conducting an evaluation of the ventilation in the affected areas.

With regard to Citation No. 2216514, petitioner's counsel introduced a copy of the mine map confirming the fact that the methane found in the inadequately ventilated area was in fact found in an abandoned area of the mine (exhibit GÄ1). Counsel

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also confirmed that no methane accumulations were reaching the working face areas of the mine.

In mitigation, respondent's answer to the petitioner's civil penalty proposal includes notes by the respondent's Assistant Safety Director Grover Fishbeck reflecting that the assistant mine foreman and another employee were in the cited area at the beginning of the shift and were attempting to deal with the ventilation problem when the inspector arrived at the scene, and that a recent fall had blocked the air course.

Mr. Fishbeck, who was present in the courtroom, stated that the ventilation problem was corrected shortly after the citation was issued, and that a telephone call was placed to MSHA between 2:30 and 3:00 p.m., that same day, reporting the fact that corrective action had been taken to restore the ventilation, and requesting that an inspector come to the mine to terminate the citation.