Secretary of Labor v. Iron Cumberland, LLC

Plain-English summary

The settlement resolved 20 citations at Iron Cumberland's Cumberland Mine, reducing proposed penalties from $19,503 to $13,773. Several negligence findings were lowered, two citations were changed to unlikely and non-S&S, and other findings were modified or left unchanged. Judge Moran questioned explanations that hazardous guarding conditions could have arisen after preshift examinations, a low-negligence reduction for a belt travelway at a mine cited 82 times under the safeguard standard, and an 80% penalty reduction for longwall sprays whose openings were substantially smaller than the ventilation plan required. He emphasized cumulative dust harm and the mine's 43 recent citations under that requirement, but approved the 29% overall reduction under Commission precedent limiting settlement inquiry.

Decision snapshot

• Cited standard discussed: 30 C.F.R. § 75.1403
• Outcome: Twenty citations were modified as agreed and settled for $13,773.
• Key point: The Judge criticized reductions involving examination, travelway, and dust-control hazards but found the settlement information sufficient under controlling Commission decisions.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

Office of Administrative Law Judges

1331 Pennsylvania Avenue, N.W., Suite 520N

Washington, DC 20004

Office: (202) 434-9933 / Fax: (202) 434-9949

|
SECRETARY OF LABOR MINE SAFETY AND HEALTH ADMINISTRATION (MSHA), Petitioner
v.
IRON CUMBERLAND, LLC, Respondent |
|
|
CIVIL PENALTY PROCEEDING
Docket No. PENN 2023-0007 A.C. No. 36-05018-564091
Mine: Cumberland Mine |

DECISION
APPROVING 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. The Secretary has filed a Motion to Approve Settlement and has set forth the factual basis for the proposed penalty. The Respondent has agreed to the proposed penalty amounts. As reflected in the table below, the originally assessed amount for the citations at issue was $19,503.00 and the proposed settlement amount is $13,773.00.

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|
|
|
|
|
9258018 |
$774.00 |
$349.00 |
Modify Negligence to Low |
|
9580404 |
$840.00 |
$407.00 |
Modify Negligence to Low |
|
9258023 |
$774.00 |
$349.00 |
Modify Negligence to Low |
|
9257972 |
$563.00 |
$234.00 |
Modify Persons Affected to 1, down from 7 affected,
asserting only one miner would be expected to slip and fall; |
|
9580420 |
$234.00 |
$234.00 |
None |
|
9580423 |
$1,358.00 |
$610.00 |
Modify Negligence to Low; |
|
9580424 |
$407.00 |
$407.00 |
None |
|
9580425 |
$349.00 |
$133.00 |
Modify Injury or Illness to Unlikely, Modify Significant and Substantial Designation to No |
|
9256357 |
$1,156.00 |
$1,156.00 |
None |
|
9256358 |
$1,156.00 |
$1,156.00 |
None |
|
9256359 |
$563.00 |
$407.00 |
Modify Persons Affected to 5 |
|
9580430 |
$1,358.00 |
$1,358.00 |
None |
|
9581721 |
$1,471.00 |
$296.00 |
Modify Injury or Illness to Unlikely, Modify Significant
and Substantial Designation to No; |
|
9580436 |
$2,573.00 |
$1,156.00 |
Modify Negligence to Low; |
|
9257973 |
$481.00 |
$215.00 |
Modify Negligence to Low; |
|
9580439 |
$273.00 |
$133.00 |
Modify Negligence to Low; |
|
9581722 |
$3,841.00 |
$3,841.00 |
None |
|
9580802 |
$518.00 |
$518.00 |
None |
|
9580803 |
$518.00 |
$518.00 |
None |
|
9580806 |
$296.00 |
$296.00 |
None |
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|
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|

The Court has considered the
Secretary’s Motion and approves it ** solely on the basis of the Commission’s
decisions in The American Coal Co., 40
FMSHRC 983 (Aug. 2018) and Rockwell Mining, LLC, 40 FMSHRC 994 (Aug.
2018) for the standard to be applied by administrative law judges when
reviewing such settlement motions under the
Commission’s interpretation of section 110(k) of the Mine Act. Under those
decisions, the Court’s role in reviewing settlement motions is circumscribed by
those decisions, with the result that reasonable inquiry by the Court is not
permitted.

For
example, were it permitted to make inquiry, the Court would have
questions regarding the claim in the motion with respect to Citation No.
92580404, as it implies that the inspector would be obligated
to have seen the cited hazards shortly after the preshift examination, a patently
unreasonable proposition. The motion asserts that the missing sliding guard and
the damaged cutting wheel both could have occurred subsequent to the preshift exam.
That both issues would exist pushes plausibility. Inspectors, aware that the
absence of a preshift exam violation has been frequently invoked of late by mine
operators, should consider whether a citation may be in order for inadequate
preshift exams.

In fact, to
his credit, the issuing inspector for a different violation, Travis Hamrick,
did just that, citing the mine operator in Citation No. 9258023, for failing
to note multiple hazardous conditions along the 75 Headgate longwall
belt. That alleged, but now-admitted, inadequate preshift was associated with the
issuance of two other citations flowing from the inadequate exam. Though the
inspector’s citation made it clear that all three citations were related, the
operator asserts again that the inspector did not observe the conditions at the
time of the preshift exam itself. The Court lauds the MSHA inspectors for their
efforts in protecting miners.

There are
other, troublesome, results in the motion. For example, in Citation No. 9580423,
the now-admitted violation involved a failure to provide a clear travelway of at
least 24 inches on both sides of the 76 Tailgate belt. The standard invoked, 30
C.F.R. §75.1403, the statutory ‘Other Safeguards’ provision, has been cited 82
(eighty-two) times at this mine in the past two years. The motion’s
resulting 55% reduction in the penalty is based upon designating the negligence
from moderate to low. But low negligence anticipates “considerable mitigating
circumstances.” The justification offered is that the mine had placed
a pump in the area. If that is sufficient to constitute considerable
mitigation, that is a low bar to meet such a classification.

Although
the Court could discuss other reductions in this motion, as a last example, Citation
No. 9581721 involved a now-admitted violation of the mine’s ventilation
plan. That plan, Inspector Stephen A. Wilt noted, requires that all sprays on
the longwall stage loader are to have a minimum opening of 3/32 inch,
but the sprays at the discharge end of crusher in this instance only had
openings of 1/16 inch. In short, the spray openings were more than two times insufficient.

However, the
Secretary buys into the assertion that it’s a small difference and as such it
would not appreciably contribute to overexposure of dust. Motion at 6. That’s
an interesting take from the Secretary of Labor, as her role is to protect
miners from dust and given that the minimum opening is to be 3/32. It
strikes the Court as disconcerting that the Secretary’s representative would
essentially agree that the more than half shortcoming for the sprays is
no big deal. That may not be so comforting to the miners who have to inhale the
dust.

And it is
problematic that the Secretary’s attorney in effect says failure to comply with
the minimum requirements imposed by MSHA transforms the violation from
reasonably likely to unlikely to result in injury, and this even though
it is indisputable that lung impairments for miners is an incremental consequence
of dust exposure and that this mine has been cited 43 (forty-three) times
for violating this standard in the past two years. Such a stance, to this Court,
seems inimical to the Secretary’s role of protecting the safety and health of miners.
It also seems fair to ask whether reducing the regularly assessed penalty from $1,471.00
down to a mere $296.00, runs counter to Congress’ clearly expressed intent that
penalties are to be of sufficient magnitude to cause mine operators to calculate
that compliance is less expensive than non-compliance. In the Court’s view, a
$296.00 penalty favors the latter approach.

Accordingly, despite the Court’s expressed misgivings over some of particulars in these settlements, it is duty-bound to follow the Commission’s decisions on the subject of settlements. For that reason, per the Commission’s decisions on the scope of a judge’s review authority of settlements, the “information” presented in this settlement motion is sufficient for approval.

WHEREFORE, the motion for
approval of settlement is GRANTED.

It is ORDERED that
Citations listed in the table above are modified per that table and that the
amounts for each citation are similarly reflected.

It is further ORDERED that,
within 30 days of this order, the operator pay the penalty of $13,773.00,
a sum reduced from the original regular assessment amount of $19,503.00, and representing
a 29% overall reduction in the penalty. Upon receipt of payment, this
case is DISMISSED.

/s/
William B. Moran

William B. Moran

Administrative Law Judge

Distribution:

Robert S. Wilson, Esq., Office of the Solicitor, Division of
Mine Safety and Health, 201 12th Street South, Suite 500, Arlington,
Virginia 22202-5450. Email: [email protected]

R. Henry Moore, Esq., Fisher Phillips, Six PPG Place, Suite
830, Pittsburgh, Pennsylvania 15222. Email: [email protected]