Emerald Coal Resources, LP and Cumberland Coal Resources, LP (ALJ decision, June 20, 2008)

Plain-English summary

The Commission had already affirmed citations issued to Emerald Coal Resources and Cumberland Coal Resources under the MINER Act's emergency-response-plan provision. The parties settled the later penalty cases by modifying both citations to non-S&S, no likelihood of injury, no lost workdays, no exposed miners, and no negligence. Each operator nevertheless agreed to pay the originally assessed $250 penalty, and Judge Michael E. Zielinski approved the settlement.

Decision snapshot

• Governing provision: 30 U.S.C. § 876(b)(2)(G)
• Outcome: The citations were modified as agreed, and Emerald and Cumberland were each ordered to pay $250.
• Key point: Parties may retain the assessed penalty while settling gravity, S&S, exposure, and negligence designations after liability has already been affirmed.

Full text (FMSHRC public release)

FMSRHC ALJ DECISION

FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001

202-434-9981/Tele 202-434-9949/Fax

June 20, 2008

EMERALD COAL RESOURCES, LP

Contestant

v.

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION, (MSHA),

Respondent

CUMBERLAND COAL RESOURCES, LP,

Contestant

v.

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION, (MSHA),

Respondent

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION, (MSHA),

Petitioner

v.

EMERALD COAL RESOURCES, LP,

Respondent

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION, (MSHA),

Petitioner

v.

CUMBERLAND COAL RESOURCES LP,

Respondent

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CONTEST PROCEEDINGS

Docket No. PENN 2007-257-R

Citation No. 7020004;05/25/2007

Emerald No. 1 Mine

Mine ID 36-05466

Docket No. PENN 2007-258-R

Citation No. 7020005;05/25/2007

Cumberland Mine

Mine ID 36-05018

CIVIL PENALTY PROCEEDINGS

Docket No. PENN 2008-71

A.C. No. 36-05466-130159

No. 1

Docket No. PENN 2008-72

A.C. No. 36-05018-130158

Cumberland Mine

DECISION APPROVING SETTLEMENT

Before: Judge Zielinski

These cases are before me on Notices of Contest and 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). The subject citations were issued by the Department of Labor’s Mine Safety and Health Administration (“MSHA”) to Emerald Coal Resources, LP, and Cumberland Coal Resources, LP, pursuant to section 316(b)(2)(G) of the Federal Mine Safety and Health Act of 1977, as amended by the Mine Improvement and New Emergency Response Act of 2006, 30 U.S.C. § 876(b)(2)(G). The validity of the citations was affirmed in Emergency Response Plan Dispute Proceedings before the Commission. 29 FMSHRC 956 (Dec. 2007), affirming 29 FMSHRC 542 (June 2007) (ALJ). Civil penalties in the amount of $250.00 were later assessed for each citation, and were timely contested by the operators.

The parties have negotiated an agreed resolution of the cases and, by motion, seek approval of the settlement agreement. The Secretary has agreed to modify the citations to specify that there was “no likelihood” of injury, “no lost workdays” would be expected, and that no miners were exposed to a hazard as a result of the violations. I addition the Secretary has agreed to modify the citations to specify that the violations were not significant and substantial and that there was no negligence associated with the circumstances underlying the citations. The operators have agreed to pay the originally assessed penalties in the amount of $250.00 each. I have considered the representations and evidence submitted and conclude that the proffered settlement is appropriate under the criteria set forth in section 110(i) of the Act.

WHEREFORE, the motion for approval of settlement is GRANTED, and it is ORDERED that the citations are hereby amended as proposed in the motion and that Respondents, Emerald Coal Resources, LP, and Cumberland Coal Resources, LP, each pay a penalty of $250.00 within 30 days.

Michael E. Zielinski

Administrative Law Judge

Distribution:

Stephen Turow, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22nd Floor, Arlington, VA 22209-2296

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty Ave., Pittsburgh, PA 15222