Secretary of Labor v. Carl Moore, employed by Calvary Coal Corporation (ALJ decision, September 5, 2014)

Plain-English summary

The Secretary sought a $3,300 individual penalty against Calvary Coal foreman Carl Moore under section 110(c) after combustible accumulations were cited at the mine. Judge Jerold Feldman explained that Moore's knowledge of the accumulations might support the operator's unwarrantable-failure finding but would not by itself establish individual liability without aggravated circumstances. Moore had not provided a workable way for the judge's office to contact him or otherwise participated in the case. The judge ordered him to respond within 21 days, provide reliable contact information, and join a telephone conference or risk default and assessment of the proposed penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.400
• Outcome: Carl Moore was ordered to show cause within 21 days why he should not be held in default.
• Key point: A supervisor's knowledge may support an operator-level unwarrantable-failure finding, but individual liability under section 110(c) requires examination of aggravated conduct.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania
Avenue, NW, Suite 520N

Washington, DC 20004

September 5, 2014

SECRETARY OF LABOR

��MINE SAFETY AND HEALTH���

��ADMINISTRATION (MSHA),

����������������������� �� Petitioner

����������������������� v.

CARL MOORE, employed by

� CALVARY COAL CORPORATION,

�������������� Respondent.

CIVIL PENALTY PROCEEDING

Docket No. VA 2012-356

A.C. No. 44-06791-282333A

Mine: No. 1

����������� ���

ORDER TO SHOW
CAUSE TO CARL MOORE

Before Judge Feldman:

This matter concerns section 104(d)(1)
Order No. 8169789, issued to Calvary Coal Corporation (�Calvary�) on May 4, 2010, for an alleged violation of the mandatory standard in 30 C.F.R. � 75.400 that is attributable to an unwarrantable failure.[1] The cited violative condition concerns loose coal, coal dust, and float coal dust that accumulated along the entire distance of the #1 belt, measuring from a thin layer, up to five inches in depth. The order also cites accumulations from nine inches to 30 inches in depth at the #1 tailpiece. The order further notes that foreman Carl Moore stated that the accumulations had been present for two shifts, that they were obvious to the most casual observer, and that Moore knew of the existence of the accumulations.

The Mine Safety and Health
Administration�s (�MSHA�) data retrieval system reflects that MSHA proposed a civil penalty of $7,176.00 against Calvary for 104(d)(1) Order No. 8169789. Calvary did not contest the order.

On May 16, 2012, the Secretary
filed an assessment for civil penalty against Carl Moore, seeking to impose a
$3,300.00 civil penalty for personal liability under section 110(c) of the Federal Mine Safety and Health Review Act (�Mine Act� or �the Act�), 30 U.S.C. � 820(c), for the violative condition cited in Order No. 8169789. Section 110(c) provides that supervisory mine personnel �who knowingly authorized, ordered, or carried out� a violation of a mandatory safety standard may be subject to personal liability. Absent strict liability, knowledge by mine supervisory personnel is always assumed for all violations that are attributable to an unwarrantable failure. Although Moore�s acknowledgement that he knew about the cited accumulations, which is imputed to Calvary, may provide an adequate basis for an unwarrantable failure designation, his knowledge alone may not be adequate to impose personal liability under section 110(c), absent aggravated circumstances.

An individual is subject to
personal liability under section 110(c) if he is uniquely �in a position to protect employee safety and health [and] fails to act on the basis of information� regarding the existence of a violative condition. Kenny Richardson, 3 FMSHRC 8, 16 (Jan. 1981), aff�d on other grounds, 689 F.2d 632 (6th Cir. 1982), cert. denied, 461 U.S. 928 (1983). The issue is whether Moore�s �failure to act� in the face of his awareness of the cited accumulations constitutes the requisite �authoriz[ing], order[ing], or carr[ying] out� of the subject section 75.400 violation as contemplated by the personal liability provisions of section 110(c) of the Act.

In order to determine whether the
Secretary has an adequate basis for seeking your personal liability in this case, it is necessary that you actively participate in these proceedings. However, to date, you have been unresponsive to my office�s inquiries, in that you have not provided an adequate method of reaching you by telephone, mail, or email. For example, the telephone number of record, which was provided by Moore and furnished to the Solicitor, has repeatedly indicated that its mailbox is full. Thus, my office has been unable to reach you, and you have failed to contact my office.

Consequently, Carl Moore IS
ORDERED TO SHOW CAUSE within 21 days of this Order why he should not be held in default and ordered to pay the $3,300.00 civil penalty, as proposed by the Secretary. In order to avoid default, Carl Moore must contact my law clerk, Avery Peechatka, via telephone at 202-233-4010 or email at [email protected], and demonstrate his continued desire to participate in this matter by providing a mailing address and a telephone number or email address at which he can be successfully reached. IT IS FURTHER ORDERED that Moore must make himself available for participation in a telephone conference with the Judge and with J. Matthew McCraken, Esq., Counsel for the Secretary, which can be scheduled through contact with Mr. Peechatka.

����������������������������������������������������������������������� /s/ Jerold Feldman

Jerold Feldman

����������������������������������������������������������������������������������� Administrative Law Judge

Distribution: (Regular and Certified Mail)

J. Matthew McCracken, Esq., U.S. Department of Labor, Office of the Solicitor, 1100 Wilson Boulevard, 22nd Floor West, Arlington, VA 22209-2247

Carl Moore, Calvary Coal Corporation, 16463 KY Rt. 122, Hi Hat, KY 41636

Carl Moore, Calvary Coal Corporation, 268 East Main Street, Prestonsburg, KY 041216

/acp

[1]
Section 75.400 provides:

Coal dust, including float coal dust
deposited on rock-dusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not be permitted to accumulate in active workings, or on diesel- powered and electric equipment therein.

30 C.F.R. � 75.400.