Secretary of Labor v. Peabody Midwest Mining, LLC (ALJ decision, November 2, 2017)

Plain-English summary

Peabody Midwest Mining sought to settle three citations involving excessive entry width, an allegedly inadequate preshift examination, and roof-support conditions. The initial motion proposed reducing penalties from $54,200 to $33,300 but stated only that substantial factual disputes existed while also rejecting the operator's contentions. Judge William B. Moran required the Secretary to identify which disputed facts and litigation risks supported the reductions. The amended motion acknowledged that the Judge could credit the operator's evidence and explained the disputes, including the effect of roof screening and fully grouted bolts. The Judge approved the $33,300 partial settlement, modified one citation's expected injury from fatal to permanently disabling, and left a $4,000 order for later resolution.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.220(a)(1), 75.360(b)(3), and 75.202(a)
• Outcome: Three citations were partially settled for $33,300, Citation No. 9036832 was modified, and Order No. 9036624 remained pending.
• Key point: A settlement motion can be approved after it identifies the real factual disputes and explains why those litigation risks support the proposed reductions.

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

November 2, 2017

SECRETARY

OF LABOR,                                :     CIVIL PENALTY PROCEEDING

MINE SAFETY

AND HEALTH                      :

ADMINISTRATION

(MSHA),                        :     Docket No. LAKE 2016-0120

Petitioner,                          :     A.C.

No. 12-02295-397991

v.                                                   :    

:    

PEABODY

MIDWEST MINING, LLC,            :     Mine: Francisco Underground Pit

Respondent.                      :

DECISION APPROVING AMENDED MOTION

TO APPROVE PARTIAL SETTLEMENT

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 (“Act”

or “Mine Act”).    On October 4, 2017 the Secretary filed a motion to approve

partial settlement. Upon review   of the motion, the Court sent an email to the

parties advising that it was unable to approve it because the Secretary failed

to specify facts which were genuinely in dispute. In response, the Secretary then

filed an amended motion to approve partial settlement on October 19, 2017

(“Amended Motion”). The original motion and the amended motion are discussed

below.

Three

citations and one order are in this docket. Order No. 9036624, with a proposed

penalty of $4,000.00, is not part of this settlement motion. [1]

The three citations which are the subject of this settlement motion are

proposed for penalty reductions, and Citation No. 9036832 is also proposed for

modification. The originally proposed penalty for Citation No. 9036832 was

$35,500.00 and the proposed settlement amount is $21,300.00. Another citation,

Citation No. 9036721, was assessed at $10,700.00 and is proposed for settlement

at $7,000.00. Finally, Citation No. 9036722 had an original proposed penalty of

$8,000.00 and the proposed settlement amount is $5,000.00. Thus the total

proposed penalty amount for these three citations was $54,200.00, and the

proposed settlement totals $33,300.00.

Following

a review of the parties’ initial settlement motion, on October 13, 2017 the

Court contacted the parties via e-mail, advising that it was unable to grant

the motion. The Court informed the parties that “where the facts support

settlement motions,” it is pleased to approve them. Court’s October 13, 2017

E-mail to the Parties. The Court added that it has “no predisposition to deny

such motions and [that] this view applies to all cases before [it]. However, as

[the Court has] obligations under 110(k), [it] need[s] to have motions that are

adequately supported.” Id .

The

Court went on to explain that its “overall problem [with the motion] is that

the Secretary has failed to specify the facts which are genuinely in dispute. Instead

the Secretary only asserts, repeatedly, that ‘[t]he reduced civil penalty on

this citation is appropriate in light of the factual disputes raised by the

parties.’ See, e.g., Motion at 4, 6 (emphasis added).” Id.

To

illustrate the inadequacy, the Court explained that “[f]or Citation No.

9036721, an alleged violation of 75.220(a)(1), the suitable roof control plan

standard, the motion, after reciting the alleged conditions, states ‘[t]he

Respondent argues that the excess width did not result in any adverse roof

conditions. According to the Respondent , the entries are allowed to

exist at this width with supplemental support, so there is nothing inherently

unsafe about the width. The Respondent also argues that the negligence

should have been reduced because the entire rib was not wide, only a portion at

the bottom due to rashing, and it occurred because of a mud separation in the

coal seam, which could have occurred at any time. Respondent further argues

that it did not know and did not have reason to know of the cited conditions.’”

Motion at 4-5 (emphasis added).

In

response, the Motion advises, “ MSHA disagrees with Respondent's

characterization of the widths being safe without supplemental support, as was

found during this inspection. Further, MSHA disagrees with Respondent's

argument that it was not negligent because only a portion of the rib was wide

and that it had no reason to know of the conditions.” Motion at 5 (emphasis

added).

Yet,

inexplicably in the Court’s estimation, the Motion then continues

“[n]evertheless, after further review of the substantial factual disputes, MSHA

determined that the citation should be removed from Special Assessment and a

modified penalty is in order. The reduced civil penalty on this citation is

appropriate in light of the factual disputes raised by the parties.” Id.

The

Court, then informed that it “is aware of and read the narrative findings for

the special assessment in its entirety [and that] [t]he assertions in

paragraphs 4 and 5 were particularly noted.” Court’s October 13, 2017 E-mail to

the Parties. Summing up the motion’s shortcoming, the Court stated, “[t]o put

it very simply, as alluded to above, after disagreeing with each of the

Respondent’s contentions, the Secretary only asserts there are ‘substantial

factual disputes,’ but he identifies none. It is insufficient to simply infer

that the Secretary views the Respondent’s assertions as creating legitimate

factual disputes. Accordingly, to be approved, the Secretary will need to

identify the legitimate, substantial, factual disputes which are genuinely in

issue.” Id.

The

Court’s email then addressed Citation No. 9036722, which presented the same problem

as Citation No. 9036721. Involved with Citation No. 9036722 is an alleged

violation of 75.360(b)(3), the preshift exam in working sections provision. The

Court noted that “[a]fter reciting the alleged conditions, the motion states ‘[t]he

Respondent argues the preshift examination was not inadequate because excess

width did not result in any adverse roof conditions , and there is

insufficient evidence to prove the condition existed at the time of the most

recent preshift examination. Respondent also argues that it did not know of the

cited condition and had no reason to know of its existence.’” Motion at 5-6

(emphasis added).

In

response, MSHA states that it “disagrees with Respondent's characterization of

there not being sufficient evidence to support the fact that the conditions

existed at the time of the most recent preshift examination. Further, MSHA

disagrees with Respondent's argument it was not negligent because it did not

know nor had reason to know of the wide entries. Nevertheless, after further

review of the substantial factual disputes , MSHA determined the citation

should be removed from Special Assessment and a modified penalty is in order. The

reduced civil penalty on this citation is appropriate in light of the factual

disputes raised by the parties.” Motion at 6 (emphasis added).

As

it did with Citation No. 9036721, the Court noted that it was “aware of and

read the narrative findings for the special assessment in its entirety [and

that] the assertions in paragraphs 8, 9, and 10 of that narrative were

particularly noted.” Court’s October 13, 2017 E-mail to the Parties. Thus, the

Court concluded that “as with Citation No. 9036721, the Secretary fails to

identify in his motion the legitimate, substantial, factual disputes which are

genuinely in issue.” Id.

Finally,

for Citation No. 9036832, an alleged 75.202(a) inadequate support or control to

provide protection from falls of roof, face and ribs violation, the Court noted

that, after reciting the alleged conditions, the motion set forth the

Respondent’s contentions. The motion recounted that the Respondent argued

“that the gravity is excessive because the bolts at issue were fully grouted

resin bolts that continue to provide protection against a major roof fall even

if the bolt or the immediate roof is damaged. Once installed, the resin bolts

provide a ‘beam effect’ in the roof that continues to provide support. Additionally,

Respondent argues exposure to the cited condition was minimal, as the bolts were

in a worked out area only accessed by a weekly examiner and the majority of

loose material present was confined to the roof screening.” Motion at 7.

In

response, MSHA stated that it “disagrees with Respondent's argument that the

bolts were such that even with the exposure of 10 inches of the bolt, they

still provide protection against a major roof fall. Furthermore, MSHA argues

that the unsupported roof could have fallen without any warning, and caused serious

injury.” Id . However, the Secretary, despite its disagreements, then

stated, “[a]fter further review of the substantial factual issues , MSHA

determined that the cited gravity should be modified from fatal to permanently

disabling. The reduced civil penalty on this citation is appropriate in light

of the modification of the gravity.” Id . (emphasis added).

As

it did with the first two citations in the motion, the Court informed that it

was “aware of and read the narrative findings for the special assessment in its

entirety [and that] [t]he assertions in paragraphs 5 and 6 were particularly

noted.” Court’s October 13, 2017 E-mail to the Parties. Again, the Court

explained that “the Secretary’s Motion fails to identify the legitimate,

substantial, factual disputes which are genuinely in issue.” Id.

Given

the above-described deficiencies, the Court stated that “absent a new,

adequately supported motion, in which the Secretary identifies the substantial

factual issues that are in dispute, these matters presently remain scheduled to

be heard in the upcoming hearing.” Id.

The

Secretary then filed the aforementioned amended settlement motion. (“Amended

Motion”) That Amended Motion largely recounted the initial motion, presenting

additional information concerning the parties’ differing perspective of the

facts but, significantly, for Citation No. 9036721, the Secretary added,

in reply to Respondent's

statements and contentions, [the Secretary stated] that he recognizes that

these facts are in dispute and raise factual and legal issues which can only be

resolved by a bearing 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. The Secretary agrees to

accept a reduced penalty.

Amended

Motion at 4-5.

In

a similar fashion, for the other two citations constituting the partial

settlement motion, the Secretary’s Amended Motion cured the deficiencies identified

by the Court in the initial motion.

To

the Secretary’s credit, in the Amended Settlement Motion, the Secretary did not

merely offer an incantation for each of the three citations. Instead, the

Secretary’s Counsel informed, for Citation No. 9036722,

at hearing would present evidence

that by failing to recognize the entry width exceeded the roof control maximum,

that the Examiner conducted an inadequate pre-shift examination. The Secretary

would also present evidence that by failing to identify entryways which

exceeded the maximum width according to the roof control plan required

additional two-foot long bolts in order to support the roof, the Examiner

failed to conduct an adequate pre-shift examination at crosscut 93. The

Secretary, in reply to Respondent’s statements and contentions, states that he

recognizes that these facts are in dispute and they 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 Order 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. The Secretary

agrees to accept a reduced penalty.

Amended

Motion at 5-7.

Using

the same, now informative approach, for Citation No. 9036832 the Amended Motion

stated,

MSHA has reviewed Respondent’s

additional mitigating arguments, especially regarding the loose material being

confined to the roof screening and the effect, if any, on material falling on

passing miners. The Secretary recognizes that Respondent’s statements and

contentions raise factual and legal disputes and also recognizes that the ALJ

may find some merit in the facts and contentions raised by Respondent.  The

Secretary agrees that the cited gravity should be modified from fatal to

permanently disabling. The reduced civil penalty on this citation is

appropriate in light of the modification of the gravity. Therefore, the parties

have agreed to settle the matter amicably without further litigation.

Amended

Motion at 7-8

As detailed above, the amended

motion now provides significantly more information in support of the proposed penalty

amounts and the proposed modification by identifying the areas of factual

dispute. With the

additional information, the Court consid­ered the repre­sen­ta­tions submit­ted

in this case and now is able to conclude that the prof­fered settle­ment is

appropriate under the criteria set forth in section 110(i) of the Act.

The

amended partial settlement motion, now having provided the needed information,

is approved.

The

settlement amounts are as follows:

Citation

No.               Assessment          Settlement

Amount

9036721                      $10,700.00                          $7,000.00

9036722                        $8,000.00                          $5,000.00

9036832                      $35,500.00                        $21,300.00

TOTAL:                     $58,200.00                        $33,300.00

Order No.                  Assessment          Settlement

Amount

9036624                        $4,000.00                         not

settled

WHEREFORE , the motion for partial approval

of settlement is GRANTED .

It

is ORDERED that Citation No. 9036832 be MODIFIED from “fatal” to

“permanently disabling.”

Upon

resolution of Order No. 9036624, the Court will issue a final Order disposing

of the four matters in this docket and ordering payment.

/s/

William B. Moran

William B. Moran

Administrative

Law Judge

Distribution:

Arthur

Wolfson, Esq., Jackson Kelly PLLC, Three Gateway Center, Suite 1500, 401

Liberty Avenue, Pittsburgh, PA 15222

Emelda Medrano, Esq., Office of the Solicitor, U.S.

Department of Labor, 230 S. Dearborn St., 8th Floor, Chicago, IL 60604

Kevin D. Wender, Esq., Office of the Solicitor, U.S.

Department of Labor, 230 S. Dearborn St., 8th Floor, Chicago, IL 60604

/JM

[1] As this matter

has been consolidated with Docket No. LAKE 2016-0140, Order No. 9036624 remains

set to be heard beginning November 7, 2017.