Secretary of Labor v. Performance Coal Company

Plain-English summary

MSHA cited Performance Coal for a significant-and-substantial accumulation of float coal dust and initially proposed a $4,329 penalty. After the hearing, the Secretary asked for $34,653 based on asserted evidence of high negligence and seven miners potentially affected. The judge discussed the statutory penalty factors, accepted moderate negligence, and assessed $4,329, but did not directly address the Secretary's increased request. The Commission explained that judges are not bound by the Secretary's proposals, but substantial differences must be adequately explained using the Mine Act's penalty criteria. It remanded the case for the judge to expressly address the increased proposed penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.400
• Outcome: The penalty issue was remanded so the judge could expressly address the Secretary's post-hearing request for an increased assessment.
• Key point: A Commission judge may depart from the Secretary's proposed penalty, but must explain a substantial deviation under the section 110(i) criteria.

Full text (FMSHRC public release)



FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE
520N

WASHINGTON, D.C. 20004-1710

August 2, 2013

SECRETARY OF LABOR,
MINE SAFETY AND
HEALTH
ADMINISTRATION (MSHA)

v.

PERFORMANCE COAL COMPANY

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Docket No. WEVA
2008-1825
A.C. No. 46-08436-150504

BEFORE: Jordan, Chairman;
Young and Nakamura, Commissioners

DECISION

BY THE COMMISSION:

This
civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act”). At issue is whether the
Administrative Law Judge failed to adequately explain his assessment of a civil
penalty lower than the penalty proposed by the Secretary of Labor in his
post-hearing brief. For the reasons that follow, we remand this matter to the
Judge.

I.

Factual and Procedural
Background

On
February 11, 2008, Keith Sigmon, an inspector with the Department of Labor’s
Mine Safety and Health Administration (“MSHA”), issued Citation No. 7279729 to
Performance Coal Co. (“Performance”), alleging a significant and substantial
(“S&S”) violation of 30 C.F.R. § 75.400. The citation indicated that he
observed accumulations of float coal dust inside and on top of the No. 1 North
Mains belt conveyor power center and on the mine floor, roof, and ribs
surrounding the power center. Gov’t Ex. 3. The citation noted that one person
would be affected by the violation, that injury was reasonably likely to be
fatal, and that the operator’s negligence was moderate. Id. The Secretary
subsequently proposed that Performance pay a civil penalty of $4,329 for the
violation.

The
operator challenged the citation and proposed penalty, and the matter proceeded
to hearing. At the hearing, the Judge ordered the parties to file post-hearing
briefs 30 days after they received the hearing transcript. Tr. 196-97. The
Secretary and Performance subsequently filed simultaneous post-hearing
briefs.

In
his post-hearing brief, the Secretary requested that the Judge make de
novo findings of fact that there were seven people potentially affected by
the violation, and that the violation resulted from high negligence. S.
Post-Hr’g Br. at 17, 18, 20. The Secretary stated that because the evidence
adduced at the hearing showed that the operator’s negligence was high and seven
miners were potentially affected, the penalty points set forth in 30 C.F.R. Part
100 increased, and a proposed increased penalty of $34,653 was appropriate.
Id. at 21. The operator did not reply to the Secretary’s post-hearing
brief.

In
his decision, the Judge set forth his findings with respect to each of the
statutory penalty criteria set forth in section 110(i) of the Mine Act, 30
U.S.C. § 820(i). 32 FMSHRC 1797, 1805-08 (Nov. 2010) (ALJ). The Judge considered
the inspector’s testimony that “numerous miners could be affected: the fire boss
could be in the area conducting an inspection, maintenance shift personnel could
be in the area servicing the belts, in addition, six miners were observed by
Sigmon cleaning the south main belt.” Id. at 1802. The Judge appeared to
credit such evidence, stating in the S&S and gravity portion of his decision
that miners at the power center and those who worked outby were subject to
reasonably serious, or even fatal, injuries as a result of an accident.
Id. at 1807. In addition, the Judge considered both parties’ evidence
regarding negligence, and accepted the inspector’s designation of the level of
negligence as moderate. Id. at 1807-08. The Judge concluded that “the
Secretary’s proposal is appropriate” and assessed a civil penalty of $4,329.
Id. at 1808.

The
Secretary filed a petition for discretionary review, which the Commission
granted. In his petition, the Secretary argues that the Judge assessed a lower
penalty than that proposed by the Secretary in his post-hearing brief, and that
the Judge erred by failing to acknowledge or explain the reduction.

II.

Disposition

As
the Commission has frequently recognized, section 110(i) of the Mine Act confers
upon the Commission the authority to assess all civil penalties provided under
the Act. See, e.g., Mining & Property Specialists, 33 FMSHRC 2961,
2963 (Dec. 2011). Neither the Judge nor the Commission is bound by the
Secretary’s proposed penalties. 29 C.F.R. § 2700.30(b); Sellersburg Stone Co.
v. FMSHRC, 736 F.2d 1147, 1151-52 (7th Cir. 1984) (“[Neither] the ALJ nor
the Commission is bound by the Secretary’s proposed penalties . . . we find no
basis upon which to conclude that [MSHA’s Part 100 Penalty regulations] also
govern the Commission.”).

Although
there is no presumption of validity given to the Secretary’s proposed
assessments, the Commission has recognized that substantial deviations from the
Secretary’s proposed assessments must be adequately explained using the section
110(i) criteria. Cantera Green, 22 FMSHRC 616, 620-21 (May 2000)
(citations omitted). The Judge “need not make exhaustive findings but must
provide an adequate explanation of how the findings contributed to his penalty
assessments.” Mining & Property Specialists, 33 FMSHRC at 2964
(citations omitted).

Here,
the Secretary proposed a significantly higher penalty in his post-hearing brief
than that initially proposed, arguing that the increase was supported by
evidence at trial showing a higher level of negligence and more miners
potentially affected by the violation. The Judge did not expressly address the
arguments made in the Secretary’s post-hearing brief. He did, however, discuss
the negligence level. See 32 FMSHRC at 1802 (noting inspector had
assessed the negligence level as “moderate” and supporting testimony);
id. at 1807-08 (discussing “negligence” specifically for more than half a
page and noting the factors he considered in deciding to “affirm Inspector
Sigmon’s negligence finding”). He also noted that miners working outby the power
center and travelling through the crosscut would have been injured in the event
of a mine fire or explosion. Id. at 1807.

Although
the Judge’s assessment of a civil penalty of $4,329 may not have been in error,
given his recitation of record evidence in support of his findings governing the
operator’s negligence, the number of miners potentially affected, and the other
relevant factors contained in section 110(i) of the Act, he should have
considered directly the Secretary’s argument in favor of an increase in the
penalty proposed. Accordingly, we remand this matter to the Judge so that he may
expressly address the Secretary’s argument in favor of the increased proposed
penalty.

III.

Conclusion

For
the reasons set forth above, we hereby remand this matter to the Judge with
instructions that he address the increased proposed penalty assessment set forth
in the Secretary’s post-hearing brief in a manner consistent with this
decision.

/s/ Mary
Lu Jordan

Mary Lu Jordan, Commissioner

/s/
Michael G. Young

Michael G. Young, Commissioner

/s/
Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution;

Carol Ann Marunich, Esq.

Dinsmore & Shohl, LLP

215 Don Knotts Blvd., Suite 310

Morgantown, WV 26501

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Administrative Law Judge David F. Barbour

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

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

Washington, D.C. 20004