Secretary of Labor v. Lehigh Anthracite Coal, LLC and Secretary of Labor v. Shane T. Wetzel, employed by Lehigh Anthracite Coal, LLC

Plain-English summary

The Commission had ruled that Lehigh Anthracite and foreman Shane Wetzel acted with reckless disregard when a miner was exposed to hazards while recovering a buried dragline bucket, and it sent the case back solely for new penalties. Judge L. Zane Gill credited Lehigh's immediate investigation, discipline, cooperation with MSHA, and voluntary addition of a bucket-recovery procedure to its ground control plan. He found that these actions showed exceptional good faith and reduced the need for a severe deterrent penalty against the operator. The Judge affirmed Citation No. 8000958 as written, assessed $10,000 against Lehigh, and increased Wetzel's individual penalty from $1,000 to $2,000.

Decision snapshot

• Cited provisions: 30 U.S.C. §§ 814(a), 814(d)(1), 820(c), and 820(i)
• Outcome: Citation No. 8000958 was affirmed, with penalties of $10,000 against Lehigh and $2,000 against Wetzel.
• Key point: Reckless disregard warrants meaningful penalties, but prompt investigation, discipline, cooperation, and safety improvements may carry substantial weight in the operator's penalty assessment.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE: 202-434-9950
/ FAX: 202-434-9949

October 19, 2018

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner,

v.

LEHIGH
ANTHRACITE COAL, LLC,

Respondent.

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner,

v.

SHANE
T. WETZEL, EMPLOYED BY LEHIGH ANTHRACITE COAL, LLC,

Respondent.

CIVIL
PENALTY PROCEEDINGS

Docket
No. PENN 2014-0108

A.C.
No. 36-01761-340312

Docket
No. PENN 2014-0109

A.C.
No. 36-01761-340312

Mine:
Tamaqua Mine

CIVIL
PENALTY PROCEEDING

Docket No. PENN 2016-0135

A.C.
No. 36-01761-402886A

Mine:
Tamaqua Mine

DECISION ON
REMAND

Appearances:               Jennifer
L. Bluer, Esq., Office of the Solicitor, U.S. Department of Labor, Philadelphia,
Pennsylvania, for Petitioner;

R. Henry Moore, Esq., Jessica M.
Jurasko, Esq., Jackson Kelly PLLC, Pittsburgh, Pennsylvania, for Respondents.

Before:                                    Judge
L. Zane Gill

These cases are before me on remand from
the Commission. 40 FMSHRC 273 (Apr. 2018). On November 22, 2016, I issued a decision
and order for the two citations issued by the Secretary of Labor (“Secretary”)
to Respondent Lehigh Anthracite Coal, LLC (“Lehigh”) pursuant to sections
104(a) and 104(d)(1) of the Federal Mine Safety and Health Act of 1977 (“Mine
Act” or “Act”), 30 U.S.C. §§ 814(a), 814(d)(1), and a civil penalty issued to
Respondent Shane T. Wetzel pursuant to section 110(c), 30 U.S.C. § 820(c). 38
FMSHRC 2782 (Nov. 2016) (ALJ). On appeal, the Commission reversed my negligence
determinations for Citation No. 8000958 [1]
and vacated and remanded the determination of penalties. 40 FMSHRC at 284-85.

I. PROCEDURAL
BACKGROUND AND ISSUES ON REMAND

On July 3, 2013, MSHA issued Citation Nos.
8000958 and 8000959. On February 10, 2016, MSHA issued a civil penalty against
Wetzel pursuant to section 110(c) of the Mine Act.

A hearing was held on April 12–13, 2016,
in Allentown, Pennsylvania. In my November 22, 2016 decision, I found a
violation in each instance and made various findings and determinations. Of central
consequence, I concluded that although Lehigh and Wetzel had displayed highly negligent
behavior, their negligence did not rise to the highest level of reckless
disregard. On December 22, 2016, the Secretary filed his petition for
discretionary review, which was granted by the Commission. On April 10, 2018,
the Commission concluded that I erred in holding that Citation No. 8000958 was
the result of high negligence, concluded the negligence was instead reckless
disregard, and vacated and remanded the case with instructions to reassess the
civil penalties against the respondents in accordance with its decision. 40 FMSHRC
at 284-85. The commission accepted as undisturbed my factual findings and
credibility determinations. Id . at 278.

Consequently, the sole issue before me
on remand is the appropriate penalty for Lehigh and Wetzel in light of the
reckless disregard determination by the Commission for Citation No. 8000958. [2]

II. PRINCIPLES
OF LAW

Administrative Law Judges
are accorded broad discretion in assessing civil penalties under the Mine Act. Westmoreland
Coal Co. , 8 FMSHRC 491, 492 (Apr. 1986). When assessing a civil penalty,
section 110(i) of the Mine Act requires that the Commission consider six
criteria: (1) the operator’s history of previous violations; (2) the
appropriateness of the penalty relative to the size of the operator’s
business; (3) the operator’s negligence; (4) the penalty’s effect on the operator’s
ability to continue in business; (5) the violation’s gravity; and, (6) the
demonstrated good faith of the operator in attempting to achieve rapid
compliance after notification of a violation. 30 U.S.C. § 820(i) .

These six criteria also
apply, with appropriate revisions, to the assessment of penalties against
individuals under section 110(c). Mize Granite Quarries, Inc. , 34 FMSHRC
1760, 1764 (Aug. 2012). Specifically, the commission has indicated that judges
should consider the following criteria when assessing a penalty against an
individual: (1) the individual’s history of previous violations; (2) the
appropriateness of the penalty to the individual’s income and net worth; (3)
the effect of the penalty on the individual’s ability to meet his financial
obligations; (4) whether the individual was negligent; (5) the gravity of the
violation; and, (6) the demonstrated good faith in abatement of the violative
condition. Id. ; Ambrosia Coal & Constr. Co. , 19 FMSHRC 819,
823-24 (May 1997); Sunny Ridge Mining Co. , 19 FMSHRC 254, 271-72 (Feb.
1997).

In
addition, deterrence is a relevant factor that judges may consider separately
from the statutorily-prescribed criteria in assessing penalties. See Black
Beauty Coal Co. , 34 FMSHRC 1856, 1864-69 (Aug. 2012).

The Commission has
repeatedly held that substantial deviations from the Secretary’s proposed
assessments must be adequately explained using the section 110(i) criteria. E.g. ,
Hubb Corp. , 22 FMSHRC 606, 612 (May 2000); Cantera Green , 22
FMSHRC 616, 620-21 (May 2000); Sellersburg Stone Co. , 5 FMSHRC 287, 293
(Mar. 1983). A judge need not make exhaustive findings, but the judge must
provide an adequate explanation of how the findings contributed to his or her
penalty assessments. Cantera Green , 22 FMSHRC at 621.

Although
all of the statutory penalty criteria must be considered, they need not be
assigned equal weight. Thunder Basin Coal Co. , 19 FMSHRC 1495, 1503
(Sept. 1997). Generally speaking, the magnitude of the gravity of a violation
and the degree of negligence are important factors, especially for more serious
violations for which substantial penalties may be imposed. Musser Eng’g, Inc. ,
32 FMSHRC 1257, 1289 (Oct. 2010) (judge justified in relying on utmost gravity
and gross negligence in imposing substantial penalty); Spartan Mining Co. ,
30 FMSHRC 699, 725 (Aug. 2008) (appropriate for judge to raise a penalty
significantly based upon findings of extreme gravity and unwarrantable
failure); Lopke Quarries, Inc. , 23 FMSHRC 705, 713 (July 2001) (judge
did not abuse discretion by weighing the factors of negligence and gravity more
heavily than the other four statutory criteria).

Finally, the Commission
alone is responsible for assessing final penalties. See Sellersburg Stone
Co. v. FMSHRC , 736 F.2d 1147, 1151-52 (7th Cir. 1984) (“[N]either the ALJ
nor the Commission is bound by the Secretary’s proposed penalties [. . .] . [W]e
find no basis upon which to conclude that [MSHA’s Part 100 penalty regulations]
also govern the Commission.”).

III. PENALTY

The
sole task before me is to reassess the civil penalties for Lehigh and Wetzel
consistent with the Commission’s instructions and the increased negligence designation
of reckless disregard.

As
intimated in my original decision, I considered Wetzel’s conduct—and Lehigh’s
by extension—as having teetered on the narrow edge between involving high
negligence and reckless disregard. Guided by MSHA’s definition of reckless
disregard as conduct that exhibits the “absence of the slightest degree of care,”
30 C.F.R. § 100.3(d), I ultimately found that Wetzel made efforts to
demonstrate some degree of care to comply with the safety standard and
concluded that, by definition, he did not act with reckless disregard. 38
FMSHRC at 2800. The penalties I originally assessed were issued with this close
call in mind.

On
appeal, the Commission stated that a literal application of MSHA’s definition
adapts poorly to the holistic consideration of negligence by Commission judges
after a hearing. 40 FMSHRC at 280. The Commission explained that judges should instead
be guided by broader and more general common-law standards more congruent with
the Act’s intent and purpose of prioritizing the health and safety of miners. Id.
Specifically, the Commission determined that Wetzel’s willingness to enter
the pit himself and his genuine-but-objectively-unreasonable belief that the
pit was safe were not factors that reduced the level of negligence. Id.
at 281-82. Additionally, the Commission concluded Wetzel’s various
actions—meeting with the crew, discussing means of freeing the bucket,
identifying a procedure to limit exposure by quickly attaching a chain to the
crow’s foot away from the highwall, examining the southern slope for
indications of future movement and support strength, illuminating the area with
the dragline, and providing the dragline operator with a horn to alert Erik Osenbach
if conditions became hazardous—were “effectively meaningless” in terms of
realistically reducing the hazards in the pit to Osenbach. Id. at 282. 

Ultimately,
the Commission concluded that the record on review “supports only the
conclusion that the respondents recklessly disregarded the safety of a miner,
and thus demonstrated the highest possible level of negligence for purposes of
penalty assessment under section 110(i).” Id. at 284.

The
Commission’s determination that respondents acted with reckless disregard does
not require that I assess radically higher penalties, nor does it require me to
automatically adopt the penalties listed in Table XIV of 30 C.F.R. § 100.3(g). See Sellersburg Stone Co. , 736 F.2d at 1151-52. With this in mind, I will reassess
the penalties for Lehigh and Wetzel below in turn.

a.         Civil
Penalty for Lehigh

Although
not highlighted in my original decision, both the Commission’s majority and
dissent discussed Lehigh’s exceptional response upon learning about the events
that transpired between the night of June 19, 2013, and the morning of June 20,
2013. See 40 FMSHRC at 276, 284 n.14, 299.

On June 20,
2013, mine foreman Louis Mitchalk found the 2400 Lima Bucket buried in the pit
while conducting his preshift inspection. (Tr.234:9-15; 248:8-12; Ex. S–19, at
2). He thereafter called safety director John Hadesty. (Tr.234:22-25; Ex. S–19,
at 2).

Mitchalk
and Hadesty immediately started an internal investigation, (Tr.235:5-8;
376:17-19), which included documenting the physical features of the incident
area, taking nearly 50 digital photographs, recording relevant measurements,
transcribing notes, and drawing sketches of the scene. (Tr.373:3-7; 375:22-376:16;
Ex. S–20, at 8) Additionally, Mitchalk and Hadesty conducted a complete review
of training records and examination records. (Ex. S–20, at 8) Hadesty also conducted
multiple interviews with the employees involved and with persons who had
knowledge of the incident. (Tr.236:12-16; 373:18-20; 384:12-17; Ex. S–20, at 8)

Upon
completing the internal investigation, Lehigh disciplined the four miners
involved—Shane Wetzel, Larry McNeal, Erik Osenbach, and Rich Rudinsky—with written
warnings, foregoing its ordinary first step of providing verbal warnings
because the miners’ conduct was so dangerous. [3]
(Tr.73:15-21; 245:6-20; 350:6-14; Ex. S–19, at 3) The miners also received
verbal counseling. (Tr.246:3-6)

On
June 24, 2013, MSHA became involved after receiving an anonymous safety
complaint. (Tr.22:20-23:3; 387:10-13) By all accounts, Lehigh was cooperative
and helpful in MSHA’s investigation: Hadesty offered his notes and photos from Lehigh’s
internal investigation to Inspector David Labenski (Tr.28:11-17; 49:3-9;
52:14-24; 111:16-19; 113:17-20; 390:6-15; 395:10-12); Hadesty gave Inspector
Labenski a copy of Wetzel’s email (Tr.122:14-16; see Ex. S–13); and Hadesty
gave Inspector Labenski a copy of McNeal’s handwritten note. (Tr.109:7-8; see
Ex. S–10)

Indeed,
Inspector Labenski’s notes state that Lehigh had been “very cooperative and
share[d] info freely when requested. Action was taken to correct the problem
before anyone from MSHA knew about it and policies have been written to prevent
further troubles. Company tries very hard to make jobs safe.” (Ex. S–3, notes
for 7-8-13, at 7) Inspector Tom Leshko similarly testified that Lehigh was fully
cooperative with the 110(c) investigation. (Tr.283:3-10) Special Investigator
John Stepanic also testified it was nice to see that the company took it upon itself
to issue the written warnings. (Tr.303:24-25)

In
addition, the operator formalized the procedure it had used to recover the
buried bucket, sought and eventually received approval from MSHA for the procedure
as an addendum to its ground control plan, and provided training on the new
procedure to its miners. (Tr.124:1-4; 126:18-127:4; Ex. S–5, at 3; Ex. S–14;
Ex. R–9) Notably, the addendum to the ground control plan was not required by
MSHA (Tr.125:3-14; 126:14-17; 401:21-402:1); rather, it was independently
developed and executed by Lehigh to ensure safer working conditions moving
forward. [4]
(Tr.124:18-24; 125:9-11; 211:21-22; 402:6-10) The citations were abated after the
updated ground control plan was approved by MSHA and Lehigh had a safety talk
with all of the employees. (Tr.126:18-22; 402:15-21)

Lehigh’s
proactive actions may be considered under section 110(i) as “demonstrated good
faith of the person charged in attempting to achieve rapid compliance after notification
of a violation.” See Hidden Splendor Res. Inc. , 36 FMSHRC 3099, 3109
(Dec. 2014) (Comm’r Cohen, concurring). The Commission articulated in its
decision that it does not consider the statutory phrase “after notification of
a violation” as “being limited to notification by MSHA or its inspectors. An
operator which is ultimately charged with a violation may receive ‘notification
of a violation’ where, as here, another foreman discovers the unsafe action and
notifies the company’s safety director.” 40 FMSHRC at 284 n.14.

Moreover,
a severe fine is not necessary to achieve future compliance in this case as Lehigh
has already positively demonstrated safety consciousness by taking exemplary
unilateral corrective action. Deterrence, as is abundantly evident here, is a
relevant factor that Judges may consider separately from the
statutorily-prescribed criteria in assessing penalties. See Black Beauty
Coal Co. , 34 FMSHRC at 1864-69.

Lehigh
took quick and decisive action in its investigation and acted aggressively to
deter similar errors in the future prior to involvement by MSHA. When MSHA got
involved, Lehigh cooperated fully and made efforts to improve safety beyond
what MSHA required. Even in light of a negligence determination of “reckless
disregard,” I give special weight to the exceptional response by Lehigh as
demonstrating good faith to achieve rapid compliance and its commitment to
ensuring a safer work environment moving forward.

After
reweighing the civil penalty factors, [5]
I conclude a civil penalty of $10,000 is appropriate and will sufficiently further
the purposes of the Mine Act.

b.
        Civil Penalty for Wetzel

As
Special Investigator Stepanic explained at hearing, the 110(c) penalty is used
as a deterrent—personal liability gets people in the mining community to talk. (Tr.305:19-306:3)
The Commission has also opined on the role of deterrence in assessing a civil
penalty: “The legislative history of the Mine Act makes exceedingly clear that
Congress intended civil penalties assessed pursuant to the Mine Act to induce
compliance with health and safety laws and regulations. Put another way,
Congress undoubtedly recognized that such penalties should be used to deter
operators from violating such mandates.” Black Beauty Coal Co. , 34
FMSHRC at 1865.

Taking
into account the entirety of Wetzel’s actions, I determine that Wetzel’s
conduct constituted reckless disregard. Given this heightened level of
negligence, and after rebalancing the 110(i) factors, [6]
I find my original assessed penalty of $1,000 is inadequate. It is imperative
that the penalty assessed be large enough to sufficiently deter Wetzel from future
negligent conduct and to impress upon him the severity of his actions. With
this in mind, I note that Wetzel was punished by Lehigh immediately after the
incident and before MSHA’s involvement. Lehigh forewent its standard first step
of providing a verbal warning and instead gave Wetzel a written letter of
reprimand. This was not insignificant. Such punishment serves as an additional
deterrent against future negligent and dangerous conduct for Wetzel.

Accordingly,
for the reasons stated above and in light of the deterrent-focused purposes of
110(c) liability, I conclude a civil penalty of $2,000 is appropriate and will
sufficiently further the goals of the Act.

IV. ORDER

It is ORDERED that Citation No.
8000958 be AFFIRMED as written.

WHEREFORE , it is ORDERED
that Lehigh Anthracite Coal, LLC PAY a penalty of $10,000.00 and that Shane
Wetzel PAY a penalty of $2,000.00 within forty (40) days of the date of
this Decision on Remand. [7]

/s/
L. Zane Gill

L.
Zane Gill

Administrative
Law Judge

Distribution:

Edward
Waldman, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th Street, South, Suite 401

Arlington,
VA 22202-5414

Jennifer
L. Bluer, Esq.

Office
of the Solicitor

U.S.
Department of Labor

The
Curtis Center

170
South Independence Mall West, Suite 630E

Philadelphia,
PA 19106-3369

R.
Henry Moore, Esq.

Jackson
Kelly PLLC

Three
Gateway Center

401
Liberty Avenue, Suite 1500

Pittsburgh,
PA 15222-1009

Ali
Beydoun, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th Street, South, Suite 401

Arlington,
VA 22202-5414

Melanie
Garris

Office
of Civil Penalty Compliance, MSHA

U.S.
Department of Labor

201
12th Street, South, Suite 401

Arlington,
VA 22202-5414

[1] The single
citation in Docket No. PENN 2014-0109 was not before the Commission on appeal. According
to MSHA’s mine retrieval and data website, the $285.00 penalty for Citation No.
8000959 was paid and the citation was closed on January 2, 2017.

[2]
The facts of this case have been discussed at length in both the original
decision, see 38 FMSHRC at 2784-87, as well as the Commission’s
decision. See 40 FMSHRC at 274-76 . Accordingly, I will not
restate the factual findings in its entirety but will, at times, reference and
highlight certain details nonetheless.

[3]
In a footnote in my original decision, I stated that I would not take Lehigh’s
disciplinary actions of Wetzel, McNeal, Osenbach, and Rudinsky into
consideration since they played no part in Inspector Labenski’s decision making
in the proceeding. 38 FMSHRC at 2787 n.4. On remand, however, I will consider
this fact in assessing the civil penalty.

[4]
This proactive safety measure is particularly commendable given the apparent rarity
of bucket retrievals. Field Office Supervisor Tom Yencho testified that he only
saw one other instance of a bucket retrieval in 15–20 years of experience and,
to his knowledge, no other operator besides Lehigh has a provision in its
ground control plan addressing how to recover a bucket. (Tr.218:10-21) Similarly,
Mitchalk had only seen five bucket retrievals in 33 years (Tr.249:14-25), and
Hadesty had never seen it in his 27 years of experience. (Tr.379:19-25)

[5]
Of the 110(i) criteria, the history of violations, appropriateness of the
penalty to the size of the business, ability to pay, and gravity criteria
remain undisturbed from my original decision.

[6]
Of the 110(i) criteria for 110(c) liable
respondents, four criteria—Wetzel’s history of violations, the appropriateness
of the penalty to Wetzel’s income and net worth, Wetzel’s ability to pay, and the
gravity—remain undisturbed from my original decision.

[7] Payment should be sent to: Mine Safety & Health Administration,
U.S. Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO
63179-0390.