Keystone Coal Mining Corporation (ALJ decision, October 10, 1990)

Plain-English summary

Keystone Coal Mining faced three orders alleging that coal, coal dust, and gobbed materials had accumulated in underground working areas in violation of 30 C.F.R. § 75.400. The proposed settlement reduced the originally assessed penalties from a combined $3,700 to $2,250. Judge Paul Merlin accepted the parties' explanation that mining conditions, the operator's misunderstanding about gobbed materials, prompt cleanup, and corrective work reduced the appropriate penalties while leaving the unwarrantable-failure findings unchanged. He approved the settlements and ordered the operator to pay $2,250 within 30 days.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.400
• Outcome: Three orders were settled, and the operator was ordered to pay $2,250 instead of the originally assessed $3,700.
• Key point: A settlement may reduce penalties based on mitigated gravity, good faith, and corrective action while leaving an unwarrantable-failure finding unchanged.

Full text (FMSHRC public release)

-_ .______

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 1730 K STREET NW, 6lH FLOOR
WASHINGTON, D.C. 20066

October 10, 1990

         SECRETARY OF LABOR,               :      CIVIL PENALTY PROCEEDING

MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. PENN 90-40
Petitioner : A. C. No. 36-04852-03698
:
V. : Urling No. 1 Mine
KEYSTONE COAL MINING
:
CORPORATION,
:
Respondent :
DECISION APPROVING SETTLEMENT
ORDER TO PAY
Before: Judge Merlin
The Solicitor has filed a motion to approve settlement of the three violations involved in this case. The originally assessed penalty was $3,700 and the proposed settlement is $2,250. The Solicitor discusses the violations in light of the six statutory criteria set forth in section 110(i) of the Federal Mine Safety and Health Act of 1977.
Order No. 3300139 was issued as a 104(d)(2) order for a violation of 30 C.F.R. 5 75.400 because coal was being dumped along with gobbed rock in the No. 2 entry. The originally assessed penalty was $1,200 and the proposed settlement is $750.
Order No. 3088570 was issued as a 104(d)(2) order for a violation of 30 C.F.R. f 75.400 because combustible materials were per- mitted to accumulate in the 10 east working section. The originally assessed penalty was $1,300 and the proposed settle- ment is $750. Order No. 3088575 was issued as a 104(d)(2) order for a violation of 30 C.F.R. § 75.400 because loose coal and coal dust, combined with gobbed materials, were permitted to accumu- late or be stored in the crosscuts left and right off the No. 2 entry of the 5 east section. The originally assessed penalty was $1,200 and the proposed settlement is $750.
The Solicitor represents that the reductions are warranted because negligence and gravity were less than originally thought.
According to the Solicitor, the operator has encountered mining conditions which have caused difficulty in the removal of gobbed materials, such as rock and slate, from the coal being produced.
The operator sought assistance from MSHA in determining an appropriate method to handle the gobbed materials which could contain some coal, and MSHA provided information concerning control of this material. The operator believed that MSHA had accepted the rock dusting method it used to render gob materials inert. However, the Solicitor advises that the subject viola- tions involved coal accumulations combined with the gobbed

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materials and that MSHA has consistently distinguished coal accumulations from gobbed materials and that accumulations must be removed from the mine. The parties agree that the subject orders do indeed properly cite violations of the named standard. In addition, the finding of unwarrantable failure remains unchanged so that the recommended settlement amounts remain substantial.
In addition, the Solicitor avers that although negligence remains high it was somewhat mitigated because the operator misunderstood what was required. I have difficulty in under- standing the Solicitor's negligence argument. However, since the parties are in agreement, I will let the unwarrantable finding stand. I do accept the Solicitor's statement that although gravity is high, the degree of gravity was mitigated because the gobbed materials were rock dusted. Finally, I note the solicitor's representations that the reductions are justified because the operator demonstrated a high degree of good faith in resolving these violations. Thus, the operator immediately removed the accumulations and is in the process of renovating its cleaning plant so that the excessive.rock and slate problems which led to the issuance of orders will not recur. Both actions have required great expense.
Based upon the foregoing, I find that the proposed settle- ments are appropriate and approve them.
Accordingly, it is ORDERED that the proposed settlements be APPROVED and the operator PAY $2,250 within 30 days of the date of this decision.

TS+-NPP&

Paul Merlin
Chief Administrative Law Judge

Distribution:
Catherine Oliver Murphy, Esq., Office of the Solicitor, U. S. Department of Labor, Room 14480-Gateway Building, 3535 Market Street, Philadelphia, PA 19104 (Certified Mail) William M. Darr, Esq., Keystone Coal Mining Corporation, 655 Church Street, Indiana, PA 15701 (Certified Mail) Robert H. Stropp, Jr., Esq., General Counsel, UMWA, 900 15th Street, N.W., Washington, DC 20005 (Certified Mail)

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