Secretary of Labor v. Twentymile Coal Company (ALJ decision, July 24, 2014)

Plain-English summary

An earlier decision upheld a combustible-material order and a preshift-examination citation as significant and substantial, but the Commission vacated the S&S findings and remanded for further proceedings. On remand, Twentymile Coal and the Secretary agreed to change both gravity findings from reasonably likely to unlikely and remove the S&S designations. They retained a $50,700 penalty for the order and reduced the citation's penalty from $50,700 to $10,000. Judge Richard W. Manning approved the settlement, ordered payment of $60,700, and dismissed the consolidated proceedings upon payment.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.360(a)(1), 75.400
• Outcome: The S&S findings were removed, the gravity findings were changed to unlikely, and total penalties of $60,700 were approved.
• Prior review: The Commission remanded the S&S issues in west-2008-788-r-commission.
• Key point: After Commission remand, the parties may settle the remaining gravity and S&S issues when the revised penalties satisfy the Mine Act's penalty criteria.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

Office of
Administrative Law Judges

721 19th Street, Suite
443

Denver, CO 80202-2536

303-844-3577 FAX
303-844-5268

July 24, 2014

TWENTYMILE
COAL COMPANY, 

Contestant

v.

SECRETARY
OF LABOR

MINE SAFETY AND HEALTH  

ADMINISTRATION (MSHA),

Respondent

SECRETARY
OF LABOR

MINE SAFETY AND HEALTH  

ADMINISTRATION (MSHA),

Petitioner

v.

TWENTYMILE
COAL COMPANY,

Respondent

CONTEST
PROCEEDINGS

Docket
No. WEST 2008-0788-R

Order
No. 7622426; 03/12/2008

Docket
No.  WEST 2008-1093-R

Order
No. 6686312; 05/06/2008

Docket
No.  WEST 2008-1094-R

Citation
No. 6686313; 05/06/2008

Mine
ID 05-03836

Foidel
Creek Mine

CIVIL
PENALTY PROCEEDINGS

Docket
No. WEST 2009-0333

A.C.
No. 05-03836-169779-01

Docket
No. WEST 2009-0579

A.C.
No. 05-03836-175445-01

Docket
No. WEST 2009-1174

A.C.
No. 05-03836-189502-02

Foidel
Creek Mine

DECISION
APPROVING SETTLEMENT ON REMAND

On
June 13, 2014, the Commission issued a decision in these consolidated proceedings.  36 FMSHRC ____ (June 2014).  In its decision, the Commission affirmed in part and remanded in part my decision of October 18, 2010.  32 FMSHRC 1431 (Oct. 2010) (ALJ).  In my original decision, I determined that the Secretary established a violation of 30 C.F.R. § 75.400 in Order No. 6686312 and a violation of 30 C.F.R. § 360(a)(1) in Citation No. 6685313[1] and that the violations were of a significant and substantial (“S&S”) nature. 32 FMSHRC at 1439-45, 1448-50.  The Commission vacated my S&S findings and remanded this issue for further proceedings

consistent
with its decision.[2] 
The specific issues of fact on remand are described in the Commission’s decision.  Slip op. at 12.

Consistent
with the Commission’s decision, I encouraged the parties to settle the S&S issue and, if a settlement was not possible, I ordered them to file statements of position.  On July 18, 2014, the parties filed a motion to approve settlement of the remaining issues in these cases. The parties agreed to modify the gravity in the order and citation from “reasonably likely” to “unlikely” and to strike the S&S determinations.  In WEST 2009-333, the parties proposed that the civil penalty for Order No. 6686312 should remain unchanged at $50,700 and the penalty for Citation No. 6686313 should be reduced from $50,700 to $10,000.[3]

I
have considered the representations and documentation submitted and I conclude that the proposed settlement is appropriate under the criteria set forth in section 110(i) of the Act.  The motion to approve the settlement of these items is GRANTED and Peabody Twentymile Mining, LLC, is ORDERED TO PAY the Secretary of Labor the sum of $60,700 within 40 days of the date of this decision.[4] Upon payment, these consolidated proceedings are DISMISSED.

/s/ Richard W. Manning

Richard W. Manning

Administrative Law Judge

Distribution:

Jennifer
A. Casey,
Esq., Office of the Solicitor, U.S. Department of Labor, 1244 Speer Blvd., Suite 515, Denver, CO 80204-3516

R. Henry Moore,
Esq., Jackson Kelly, 3 Gateway Center, Suite 1500, 401 Liberty Ave., Pittsburgh, PA 15222

RWM

[1]
The MSHA
inspector issued Citation No. 6685313 as a section 104(d)(2) order but the Secretary modified it at the hearing to a section 104(a) citation with high negligence.  32 FMSHRC at 1449.

[2]
The remanded
citation and order are at issue in docket numbers WEST 2008-1093-R, WEST 2008-1094-R, and WEST 2009-333 only.

[3]  The Secretary originally
proposed a total penalty of $101,400 for the citation and order and I assessed a total penalty of $55,000 in my decision.  32 FMSHRC at 1462.  The remaining six citations and orders in WEST 2009-333 have been resolved and are not at issue on remand.

[4]
Payment
should be sent to the Mine Safety and Health Administration, U.S. Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.  The payment should reference WEST 2009-333, A.C. No. 05-03836-169779-01.