Secretary of Labor v. Peabody Midwest Mining, LLC

Plain-English summary

Peabody Midwest violated its emergency response plan by placing one refuge chamber in the direct line of sight of the working face. On review of an earlier ALJ ruling, the Commission removed the significant-and-substantial designation because more than 15 miners were present only during shift changes when mining was not occurring, so the properly placed chamber was sufficient for the contemplated emergency. On remand, Judge David Simonton reclassified the citation from section 104(d)(1) to section 104(a), which also removed the unwarrantable-failure determination. He continued to find the violation serious and the operator highly negligent. The judge reduced the penalty from his earlier $50,000 assessment to $35,000, and the Commission later vacated its direction for further review, leaving this decision final.

Decision snapshot

• Cited authority: 30 U.S.C. § 876(b)
• Outcome: The S&S and unwarrantable-failure findings were removed, the citation was reclassified under section 104(a), and a $35,000 penalty was assessed.
• Key point: Removing an S&S designation can reduce gravity and statutory classification even when the underlying emergency-plan violation remains serious.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19 th ST.
SUITE 443

DENVER, CO 80202-2500

TELEPHONE:
303-844-5266 / FAX: 303-844-5268

August 12, 2020

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH      

ADMINISTRATION (MSHA),

Petitioner,

v.

PEABODY MIDWEST MINING, LLC,

Respondent.

CIVIL PENALTY PROCEEDING

Docket No. LAKE 2017-0450

A.C. No. 12-02295-447106

Mine: Francisco Underground
Pit

DECISION ON
REMAND

Before:             Judge Simonton

This case is before me upon remand from the
Commission. Peabody Midwest Mining, LLC , 42 FMSHRC___, slip. op.
at 11 (June 2, 2020). It involves a petition for assessment of a civil penalty
filed by the Secretary of Labor through the Mine Safety and Health
Administration (“MSHA”) against Peabody Midwest Mining, LLC (”Peabody” or
“Respondent”), pursuant to section 104(d)(1) of the Federal Mine Safety and
Health Act of 1977 (“Mine Act”), 30 U.S.C. § 814(d)(1).

I.          
HISTORY OF THE CASE

On July 17, 2017, MSHA issued
Citation No. 9105403 to Peabody for a violation of section 316(b) of the Mine
Improvement and New Emergency Response Act of 2006 (“MINER Act”), which requires
every underground coal mine to develop a written plan to provide for the
evacuation of all individuals in an emergency and provide for the maintenance
of miners trapped underground where evacuation is not possible. 30 U.S.C. § 876(b).
Peabody’s Emergency Response Plan (“ERP”) requires two properly positioned
refuge chambers, sufficient to shelter all the miners present in the event of
an emergency, even during a shift change when two teams of 15 miners would be
present. Ex. S–3. It states that refuge chambers “will not be placed in the
direct line of sight of the working face.” However, at the time of inspection,
one refuge chamber was in the travelway in the direct line of sight of the
working face and in violation of the ERP. Ex. R–A; Tr. 27–29. The inspector
designated the citation significant and substantial (“S&S”), reasonably
likely to be fatal, and the result of Peabody’s high negligence and
unwarrantable failure to comply with the Mine Act. Ex. S–1. The Secretary
proposed a civil penalty of $44,546.00.

Peabody contested the S&S,
negligence, unwarrantable failure designation, and the penalty. Respondent’s
Post-Hearing Brief at 10. A violation is S&S “if based upon the particular
facts surrounding the violation there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious
nature.” Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (Apr.
1981). I determined that the violation was S&S because the Secretary proved
the four elements of the Mathies test: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard—that is, a measure of
danger to safety—contributed to by the violation; (3) a reasonable likelihood
that the hazard contributed to will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of a reasonably serious nature. Mathies
Coal Co. , 6 FMSHRC 1, 3–4 (Jan. 1984). In analyzing the second criterion, I
acknowledged the Commission’s recognition in past cases that “emergency standards
are different from other mine safety standards because they are intended to
apply meaningfully only when an emergency actually occurs.” IGC Illinois,
LLC , 38 FMSHRC 2473, 2476 (Oct. 2016) citing Cumberland Coal
Res., LP , 33 FMSHRC 2357, 2367 (Oct. 2011), aff’d 717 F.3d 1020
(D.C. Cir. 2013). Because Commission precedent directs judges to assume the
existence of a contemplated emergency when defining the hazard contributed to by
a violation, see, e.g., ICG Illinois, LLC , 38 FMSHRC at 2476, I assumed an
emergency in which evacuation was impossible and the refuge chamber was
necessary.

Testimony at the hearing
established that the ERP prohibits positioning the refuge chamber in the direct
line of sight of the working face because an explosion traveling out could damage
or destroy the chamber. Tr. 29–30, 84–85. In presuming the occurrence of a fire
or ignition significant enough to prevent miners from evacuating, I found that
all four elements of the Mathies test were satisfied and thus the
violation was S&S. I affirmed the citation as written and assessed a
penalty of $50,000.00. 40 FMSHRC 861 (June 2018) (ALJ). 

Following the issuance of my June
28, 2018 decision after hearing, Peabody appealed the decision to the
Commission. It did not contest the fact of violation or the unwarrantable
failure designation, but challenged the citation’s Significant and Substantial
(“S&S”) designation. Upon review, the Commission reversed the S&S
designation. 42 FMSHRC___, slip op. at 10–11. In doing so, it reviewed S&S
precedent and restated the proper test for an S&S violation:

In order to establish that a violation
of a mandatory safety standard is significant and substantial, the Secretary of
Labor under National Gypsum must prove: (1) the underlying violation of
a mandatory safety standard; (2) the violation was reasonably likely to cause
the occurrence of the discrete safety hazard against which the standard is
directed; (3) the occurrence of that hazard would be reasonably likely to cause
an injury; and (4) there would be a reasonable likelihood that the injury in
question would be of a reasonably serious nature.

Id . at 5. Because more than 15 miners were
only present during shift changes when no mining activities were occurring, the
Commission determined that the one properly-placed refuge chamber was
sufficient for the contemplated emergency because an explosion was only ever
likely during mining activities. Id . at 8–10. The Commission remanded
the case for reassessment of the civil penalty in accordance with its decision.

II.          
PENALTY

It is
well established that Commission administrative law judges have the authority
to assess civil penalties de novo for violations of the Mine Act. Sellersburg
Stone Company , 5 FMSHRC 287, 291 (Mar. 1983). Commission Judges are not
bound by the Secretary’s penalty regulations. Am. Coal Co. , 38 FMSHRC
1987, 1990 (Aug. 2016).  Rather, the Act requires that in assessing civil
monetary penalties, the Commission ALJ shall consider the six statutory penalty
criteria:

(1) the operator’s
history of previous violations, (2) the appropriateness of such penalty to the
size of the business of the operator charged, (3) whether the operator was
negligent, (4) the effect on the operator’s ability to continue in business, (5)
the gravity of the violation, and (6) the demonstrated good faith of the person
charged in attempting to achieve rapid compliance after notification of a
violation.

30 U.S.C. § 820(i).

I have
considered and applied the six penalty criteria. In the fifteen months
preceding the issuance of this citation, Peabody averaged 0.59 violations per
inspection day and had only one previous violation of section 316(b). The mine
is a large operator and the parties stipulated that the Secretary’s proposed penalty
of $44,546.00 would not affect Peabody’s ability to remain in business. The
high negligence designation was not challenged on appeal and remains unaffected
by the Commission’s decision. The Commission has determined that this violation
is not S&S, so the gravity involved is less severe than originally designated
in the citation and affirmed in my initial decision. Relatedly, as a result of
the S&S designation being vacated, the violation must be reclassified as a
section 104(a) citation, which effectively removes the unwarrantable failure determination.
Peabody immediately worked to abate the condition following the issuance of the
citation. Tr. 62-63, 150, 172. However, it also admitted that the refuge
chamber would have remained in the direct line of sight of the working face for
a couple of days if not for the citation. Tr. 150.

I remain convinced that Peabody’s
failure to follow its own ERP by placing a refuge chamber in direct line of
sight of the working face constitutes an extremely serious violation. After
considering the penalty criteria in light of the Commission’s decision, I find
that a penalty of $35,000 is appropriate.

III.          
ORDER

Because the citation’s S&S designation has
been eliminated, it is hereby ORDERED that Citation No. 9105403
be changed from a section 104(d)(1) citation to a section 104(a) citation. Peabody
Midwest Mining, LLC is ORDERED to pay the Secretary of Labor the sum of $35,000
within 30 days of this decision. [1]

/s/
David P. Simonton

David P. Simonton

Administrative Law Judge

Distribution: (Email [2] )

R. Henry Moore, Fisher & Phillips, LLP,
[email protected]

Arthur M. Wolfson, Fisher & Phillips, LLP, [email protected]

Andrew R. Tardiff, Office of the Solicitor, U.S. Department
of Labor, [email protected]

[1]
Please pay penalties electronically at Pay.Gov, a service of the
U.S. Department of the Treasury, at  https://www.pay.gov/public/form/start/67564508 .
Alternatively, send payment (check or money order) to: U.S. Department of
Treasury, Mine Safety and Health Administration

P.O.
Box 790390, St. Louis, MO 63179-0390. Please include Docket and A.C. Numbers.  

[2]
For the
foreseeable future, Federal Mine Safety and Health Review Commission (FMSHRC)
notices, decisions, and orders will be sent only through electronic mail.
Because FMSHRC will not be monitoring incoming physical mail or faxes, parties
are encouraged to submit all filings through the agency’s electronic filing
system. If you are not able to file through our electronic filing system,
please send an email copy and we will file it for you.