Secretary of Labor v. Peabody Midwest Mining LLC (ALJ decision, June 8, 2015)

Plain-English summary

MSHA cited Peabody Midwest Mining for failing to provide requested Part 50 information and later proposed a $4,000 daily penalty until the company complied. The underlying citation was affirmed by the Seventh Circuit, and the daily penalty accrued to approximately $2.76 million before Peabody said it would comply. Judge Janet G. Harner approved a $642,000 settlement for the daily-penalty docket, payable in two installments. She noted the Secretary's discretion over daily penalties, the substantial issues raised in the contest proceeding, and that the missing information did not affect miners' health or safety during ongoing mining operations. For the underlying citation docket, Peabody agreed to pay the original $196 assessment while the negligence designation was reduced from high to moderate.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 50.41 and 100.5(c)
• Outcome: Peabody was ordered to pay $642,000 in the daily-penalty docket and $196 in the underlying citation docket, with negligence reduced from high to moderate.
• Key point: The settlement reduced an approximately $2.76 million accrued daily penalty to $642,000 after considering enforcement discretion, substantial legal issues, and the absence of an effect on miners during ongoing operations.

Full text (FMSHRC public release)

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SEQ CHAPTER \h \r 1 FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER,
SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE: 412-920-7240
/ FAX: 412-928-8689

SECRETARY OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION (MSHA),

Petitioner,

v.

PEABODY
MIDWEST MINING LLC,

Respondent.

CIVIL PENALTY PROCEEDING

Docket No. LAKE 2011-302

A.C. No. 12-02010-242576

Mine: Air Quality #1 Mine

DAILY CIVIL PENALTY PROCEEDING

Docket No. LAKE 2011-856

A.C. No. 12-02010

Mine: Air Quality #1 Mine

SEQ CHAPTER \h \r 1            

DECISION
APPROVING SETTLEMENT

ORDER
TO MODIFY

ORDER
TO PAY

Before:
Judge Harner

These cases are before me upon
petitions for assessment of civil penalties under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d) (“Mine Act”). A Joint Motion for approval of a settlement agreement on these cases has been submitted to me.

Docket
No. LAKE 2011-856
concerns a proposed daily civil penalty issued pursuant to Section 110(b) of the Mine Act for a continuing violation. The underlying Section 104(a) citation (No. 6670852) for a violation of 30 C.F.R. § 50.41 was issued on November 9, 2010. The Respondent, Peabody Midwest Mining, contested the citation (Docket No. LAKE 2011-118-R) before the Federal Mine Safety and Health Review Commission (“Commission”). On June 23, 2011, the Secretary issued a notification of the proposed assessment of penalty to Peabody pursuant to 30 C.F.R. § 100.5(c), and proposed a daily penalty of $4,000.00 until Peabody abated the citation. Contest proceedings related to the underlying citations continued before the Commission and the United States Court of Appeals for the Seventh Circuit. The underlying citation was affirmed by the Seventh Circuit on April 26, 2013. 715 F.3d 631. On May 15, 2013, Peabody provided notice to the Secretary that although it disagreed with the Court’s decision it would comply with it, and the proposed daily penalty stopped accruing.

The total penalty that accrued until
Respondent notified the Secretary that it would comply with the Court’s decision and the penalty stopped accruing was approximately $2,760,000. By order dated December 18, 2014, this Court appointed Thomas Stock and Mark Malecki as settlement attorneys. The proposed settlement amount agreed to by the parties is $642.000.00, payable in two installments as set forth below.

For the reasons that follow I approve
the parties’ joint motion to settle this docket. Under the guidance of the appointed settlement attorneys, the parties were able to fully discuss and confer on their respective positions with respect to this docket. In addition, I note that although the Act provides for a daily civil penalty in response “to operator recalcitrance in situations where … [a] violation is not abated in a timely manner” [1] , the Secretary’s decision to propose a daily civil penalty is discretionary as is the dollar amount of such daily civil penalty. Further, the issues and defenses raised in the contest proceeding were substantial and involved, inter alia, the interpretation of other federal statutes and their relationship to the Mine Act. Finally, the Respondent’s failure to provide the requested Part 50 information did not affect the health and safety of miners while performing ongoing mining operations at the mine.

With regards to Citation No. 6670852 contained in Docket No. LAKE 2011-302, the Respondent has agreed to pay the originally assessed amount of $196.00, and the parties agree that the negligence designation will be modified from “High” to “Moderate.”

SEQ CHAPTER \h \r 1 Having considered the above, the Joint Motion and the other documentation, I find that the modifications are reasonable as set forth in the motion to approve settlement and conclude that the proposed settlement is appropriate under the criteria set forth in section 110(i) of the Act. The motion to approve settlement is GRANTED, and the modifications are accepted as set forth in the motion.

With regards to Docket No. LAKE 2011-856, Peabody Midwest Mining LLC is hereby ORDERED to pay the Secretary of Labor the sum of $642,000.00. The penalty will be payable in two installments, with $321,000.00 being due within 30 days of this decision, and $321,000.00 being due within 120 days of this decision. [2] Upon receipt of the two payment, Docket No. LAKE 2011-856 is DISMISSED.

With regards to Docket No. LAKE 2011-302, Peabody Midwest Mining LLC is hereby ORDERED to pay the Secretary of Labor $196.00 within 30 days of the date of this decision. Upon receipt of the payment, Docket No. LAKE 2011-302 is DISMISSED.

/s/ Janet G. Harner

Janet G. Harner

Administrative Law Judge

Distribution:

Samuel
Lord, Esq., U.S. Dept. of Labor, 1100 Wilson Blvd. Suite 2200, Arlington, VA 22209

Dan
Wolff, Esq., Crowell & Moring LLP, 1001 Pennsylvania Ave., NW, Washington, DC 20004

/mzm

[1] See Thunder Basin Coal Co., 19 FMSHRC
1495, 1505 (Sept. 1997).

[2]
1Payment 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