Secretary of Labor v. Consolidation Coal Co. and McElroy Coal Co.

Read the official release (fmshrc.gov)

Plain-English summary

This global settlement covered 1,753 citations and orders in 132 civil-penalty dockets from five northern West Virginia underground coal mines acquired by Murray Energy from CONSOL Energy in December 2013. The citations had proposed penalties totaling $5,097,611 and addressed common underground-mine issues including accumulations, roof and rib control, ventilation and roof-control plans, electrical conditions, preshift examinations, and safeguards. The parties agreed to affirm the affected citations and orders as issued while reducing some penalties to account for factual and legal defenses and the change in mine ownership. Two flagrant-violation designations were removed, with each related order settled at the $70,000 maximum penalty. Judge Janet G. Harner approved total penalties of $3,313,477, payable in four installments over 360 days, and ordered dismissal after payment was complete.

Decision snapshot

• Common cited standards: 30 C.F.R. §§ 75.202, 75.220, 75.360, 75.370, 75.400, 75.517, and 75.1403
• Outcome: A global settlement resolving 1,753 citations and orders in 132 dockets was approved for $3,313,477.
• Key point: A large global settlement may preserve the citations as issued while reducing penalties to reflect litigation risk, changed ownership, and the statutory penalty criteria.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER,
SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE: 412-920-7240
/ FAX: 412-928-8689

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

CONSOLIDATION
COAL CO. AND MCELROY COAL CO.,

Respondents

CIVIL
PENALTY PROCEEDINGS

Docket
No. WEVA 2011-1314, et al.[1]

A.C.
No. 46-01318-249156

Mine:
Robinson Run No. 95

Mine
ID: 46-01318

Mine:
Blacksville No. 2

Mine
ID: 46-01968

Mine:
Shoemaker

Mine
ID: 46-01436

Mine:
Loveridge No. 22

Mine
ID: 46-01433

Mine:
McElroy

Mine
ID: 46-01437

ORDER OF
CONSOLIDATION

AMENDED DECISION
APPROVING GLOBAL SETTLEMENT[2]

ORDER TO DISMISS

ORDER TO PAY

Before:
Judge Harner

These
cases concern proposals for assessment of civil penalties filed pursuant to
Section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§815(d) (“Act”), seeking civil penalty assessments for alleged violations of
mandatory safety and health standards. This decision concerns 132 civil penalty
dockets, including 1753 citations and orders, with proposed penalties totaling
$5,097,611.00. The parties have negotiated and submitted a proposed settlement
that seeks to resolve all affected citations and orders contained in these 132
dockets. It is ORDERED that these cases are CONSOLIDATED for
purposes of settlement.

On December 6, 2013, Murray Energy
Company (“Murray”) acquired five northern West Virginia underground mines from
CONSOL Energy, Inc. (“CONSOL”). The five mines that were acquired are
Blacksville No. 2 (Mine ID: 46-01968), Loveridge (Mine ID: 46-01433), McElroy (Mine
ID: 46-01437), Robinson Run (Mine ID: 46-01318), and Shoemaker (Mine ID:
46-01436) (collectively referred to as the “CONSOL Mines”). The Secretary
issued citations/orders to the CONSOL Mines on or before December 6, 2013 and
this global settlement resolves those citations/orders (“affected
citations/orders”).

The Secretary attached three exhibits to
his Motion to Approve Global Settlement. Exhibit 1 contains a summary of
the 132 dockets included in this global settlement. Exhibit 2 contains a
listing of all citations/orders in 110 fully resolved dockets. Exhibit 3
contains 22 dockets and the citations/orders in them that were issued on or
before December 6, 2013. These 22 dockets also contain additional
citations/orders issued after that date.[3]

The parties have agreed that the
affected citations/orders shall be affirmed as set forth herein and that a
civil penalty shall be assessed for each affected citation/order as set forth
in Exhibit 2 and Exhibit 3. The facts surrounding each violation
are set forth in the body of each affected citation/order, copies of which were
attached as part of Exhibit A to the Secretary’s Petitions. The Secretary has
considered the deterrent effect of such penalties taking into account that the
CONSOL Mines were not owned or controlled by Murray when the affected
citations/orders were issued. The violations were abated in good faith. The
operator’s history of previous violations and size are contained in Exhibit A
which was attached to the Petition for each case when filed by the Secretary. The
Respondent agrees that final assessment of the agreed upon penalties will not
adversely affect the operator's ability to continue in business. The gravity of
each violation and the operator’s negligence are set forth in the body of each
citation/order. In reaching this agreement on the total penalty amount, the
parties reviewed and considered the allegations contained in the 1753 affected
citations/orders which are contained in the 132 dockets at issue here and
present the following in support of this Motion:

Negligence:

The parties have reviewed the affected
citations/orders in the 132 Dockets affected by this global settlement. The
affected citations/orders generally encompass violations that are often issued
by MSHA in underground coal mines, including violations issued for the
following standards: 30 C.F.R. §75.400 - combustible accumulations, 30 C.F.R.
§75.202 - roof and rib control, 30 C.F.R. §75.370 and 30 C.F.R. §75.220 -
ventilation plan and roof control plan, 30 C.F.R. §75.517 – electrical, 30
C.F.R. §75.360 –pre-shift examinations and 30 C.F.R. §75.1403 – safeguard
notices, for example. The parties agree that the respondent will accept all
affected citations/orders as issued, despite the existence of good faith
factual and legal disputes. The parties agree however, that the Respondent
shall pay civil penalties which, while lower than proposed, are commensurate
with the respondent’s assertions in each of the dockets. Specifically,
Respondent has raised issues concerning the designated level of negligence and
the evidence the Secretary relied on to support high and moderate negligence
designations for certain conditions. For certain citations/orders, Respondent
asserts, for example, that management could not be in a position to know, nor
could they have known, of conditions that existed for a short period of time,
were in remote areas of the mine, had just occurred, or were not noted on
examinations.  The Secretary reviewed the evidence in light of Respondents’
assertions. The parties agree that all affected citations/orders shall be
affirmed as issued, regarding the negligence findings alleged, and that in some
instances a modest reduction in penalty is appropriate.

Gravity:

Gravity findings include the likelihood
of injury or illness, the type of injury or illness, whether the gravity is
significant and substantial and the number of persons affected. The parties
reviewed the gravity findings in the 1753 affected citations/orders. As would
be expected given the volume, Respondent raised factual issues in whole or in
part with regard to the gravity findings alleged in many of the affected
citations/orders. The Respondent raised factual and evidentiary concerns
surrounding whether some of the conditions alleged would be reasonably likely
or highly likely to lead to a permanently disabling or fatal injury and whether
the number of persons identified would be affected by the hazard cited. Additionally,
Respondent contends that there are several instances where the evidence does
not fully support the likelihood of injury identified on the face of the citation
or order. Those questions arise, for example, when evaluating the likelihood of
miners to be permanently or fatally injured for minor or technical violations
of the ventilation plan or roof control plan or whether an inadequate pre-shift
examination would result in a fatal injury to one or more miners. Finally,
based on many of the same factors, the Respondent raised concerns regarding the
significant and substantial designation for certain hazards including whether
the limited exposure of miners would contribute to a serious injury or death
should normal mining operations continue. After reviewing the evidence
presented by the Secretary and the Respondent, the parties agree that the
affected citations/orders should be affirmed as issued. The Secretary has agreed
to a reduction in penalty for some of the affected citations/orders in
recognition of the defenses raised by the Respondent should the violations
proceed to a hearing on the merits.

Finally, Order No. 8038342 contained in
Docket No. WEVA 2012-995 and Order No. 7114564 contained in Docket No. WEVA
2013-800 were designated as flagrant violations for assessment purposes
pursuant to § 110(a)(2) of the Mine Act. The Secretary agrees to remove that
designation for the purposes of this settlement and to resolve those Orders at
the maximum penalty of $70,000.00 each.

I have considered the representations
and documentation submitted, find that the settlement is reasonable as set
forth in the motion to approve settlement, and conclude that the proposed
settlement is appropriate under the criteria set forth in section 110(i) of the
Act. In deciding to approve this settlement agreement, I note the following:
the violations of the Act set forth in the affected citations/orders were not
committed while the mines were under Murray’s control; the settlement will
allow the parties to move forward and concentrate on future safety, health, and
compliance in order to benefit the miners who work at these five mines; and the
settlement will avoid protracted litigation that would occur if the cases were
not resolved. While the Respondent is paying less than the amounts originally
assessed by the Secretary, I deem that the amounts are reasonable under all of
the circumstances herein.

The motion to approve settlement is GRANTED,
all representations are accepted as set forth in the motion, and Respondent is
hereby ORDERED to pay the Secretary of Labor the sum of $3,313,477.00
according to the following payment schedule:

Within 30 days of this decision,
Respondent will pay $1,000,000.00. Respondent will make a second payment of
$1,000,000.00 within 120 days of the date of this decision. Respondent will
make a third payment of $1,000,000.00 within 240 days of this decision.
Respondent will make a fourth and final payment of $313,477.00 on or before 360
days from the date of this decision.[4]
The parties further agree that if Respondent fails to make any payment in
accordance with the terms herein, any remaining penalty due becomes payable in
full immediately upon default. Upon the completion of the payment schedule,
these cases are DISMISSED.

/s/ Janet G. Harner

Janet
G. Harner

Administrative
Law Judge

Distribution:

Dana
L. Ferguson, Esq., U.S. Dept. of Labor, Office of the Solicitor, MSH Division,
201 12th St. South, Suite 500, Arlington, VA22202

Eric
Silkwood, Esq., Hardy Pence, 500 Lee St. East, Suite 701, Charleston, WV 25301

Docket
No.

Mine

Full
/ Partial

Number of Citations in Docket

Number of Citations Settling

WEVA 2011-1314

Harrison/Robinson

F

19

19

WEVA 2011-2248

Marion/Loveridge

F

14

14

WEVA 2011-900

Harrison/Robinson

F

11

11

WEVA 2012-1052

Marshall/McElroy

F

53

53

WEVA 2012-1115

Ohio/Shoemaker

F

3

3

WEVA 2012-1143

Marion/Loveridge

F

2

2

WEVA 2012-1193

Marshall/McElroy

F

1

1

WEVA 2012-1194

Marshall/McElroy

F

70

70

WEVA 2012-1256

Harrison/Robinson

F

2

2

WEVA 2012-1257

Harrison/Robinson

F

9

9

WEVA 2012-1258

Ohio/Shoemaker

F

3

3

WEVA 2012-1460

Marshall/McElroy

F

1

1

WEVA 2012-1489

Marshall/McElroy

F

1

1

WEVA 2012-1642

Harrison/Robinson

F

19

19

WEVA 2012-213

Harrison/Robinson

F

10

10

WEVA 2012-322

Marshall/McElroy

F

18

18

WEVA 2012-471

Marshall/McElroy

F

41

41

WEVA 2012-512

Marion/Loveridge

F

1

1

WEVA 2012-634

Marshall/McElroy

F

15

15

WEVA 2012-706

Harrison/Robinson

F

11

11

WEVA 2012-772

Marshall/McElroy

F

1

1

WEVA 2012-773

Marshall/McElroy

F

14

14

WEVA 2012-827

Harrison/Robinson

F

18

18

WEVA 2012-873

Marshall/McElroy

F

1

1

WEVA 2012-874

Marshall/McElroy

F

22

22

WEVA 2012-97

Marshall/McElroy

F

1

1

WEVA 2012-973

Marion/Loveridge

F

1

1

WEVA 2012-974

Marion/Loveridge

F

5

5

WEVA 2012-975

Marshall/McElroy

F

13

13

WEVA 2012-98

Marshall/McElroy

F

36

36

WEVA 2012-995

Marion/Loveridge

F

1

1

WEVA 2013-50

Harrison/Robinson

F

22

22

WEVA 2013-51

Marion/Loveridge

F

1

1

WEVA 2013-52

Marion/Loveridge

F

26

26

WEVA 2013-1008

Marion/Loveridge

F

1

1

WEVA 2013-1028

Marshall/McElroy

F

1

1

WEVA 2013-1029

Marshall/McElroy

F

40

40

WEVA 2013-1060

Mon/blacksville

F

10

10

WEVA 2013-1079

Marion/Loveridge

F

3

3

WEVA 2013-1080

Marion/Loveridge

F

3

3

WEVA 2013-1087

Harrison/Robinson

F

13

13

WEVA 2013-1088

Ohio/Shoemaker

F

17

17

WEVA 2013-1132

Marshall/McElroy

F

3

3

WEVA 2013-1133

Marshall/McElroy

F

53

53

WEVA 2013-1134

Harrison/Robinson

F

1

1

WEVA 2013-1156

Ohio/Shoemaker

F

12

12

WEVA 2013-1167

Harrison/Robinson

F

16

16

WEVA 2013-1201

Mon/blacksville

F

31

31

WEVA 2013-1213

Marion/Loveridge

F

39

39

WEVA 2013-1226

Marshall/McElroy

F

23

23

WEVA 2013-1251

Ohio/Shoemaker

F

5

5

WEVA 2013-1286

Harrison/Robinson

F

7

7

WEVA 2013-1287

Marion/Loveridge

F

2

2

WEVA 2013-1288

Marion/Loveridge

F

23

23

WEVA 2013-1291

Mon/blacksville

F

27

27

WEVA 2013-1340

Marshall/McElroy

F

16

16

WEVA 2013-397

Harrison/Robinson

F

2

2

WEVA 2013-451

Harrison/Robinson

F

1

1

WEVA 2013-501

Mon/blacksville

F

30

30

WEVA 2013-571

Marshall/McElroy

F

1

1

WEVA 2013-572

Marshall/McElroy

F

22

22

WEVA 2013-573

Ohio/Shoemaker

F

2

2

WEVA 2013-574

Ohio/Shoemaker

F

8

8

WEVA 2013-584

Harrison/Robinson

F

9

9

WEVA 2013-636

Marshall/McElroy

F

29

29

WEVA 2013-672

Marshall/McElroy

F

11

11

WEVA 2013-695

Ohio/Shoemaker

F

1

1

WEVA 2013-696

Ohio/Shoemaker

F

20

20

WEVA 2013-698

Ohio/Shoemaker

F

1

1

WEVA 2013-707

Harrison/Robinson

F

2

2

WEVA 2013-708

Harrison/Robinson

F

27

27

WEVA 2013-790

Marshall/McElroy

F

1

1

WEVA 2013-791

Marshall/McElroy

F

26

26

WEVA 2013-800

Ohio/Shoemaker

F

1

1

WEVA 2013-838

Mon/blacksville

F

61

61

WEVA 2013-883

Harrison/Robinson

F

16

16

WEVA 2013-929

Marshall/McElroy

F

27

27

WEVA 2013-936

Marion/Loveridge

F

3

3

WEVA 2013-956

Harrison/Robinson

F

14

14

WEVA 2013-960

Ohio/Shoemaker

F

8

8

WEVA 2014-9

Ohio/Shoemaker

F

3

3

WEVA 2014-25

Harrison/Robinson

F

17

17

WEVA 2014-29

Marion/Loveridge

F

1

1

WEVA 2014-38

Marion/Loveridge

F

24

24

WEVA 2014-73

Mon/blacksville

F

33

33

WEVA 2014-189

Harrison/Robinson

F

53

53

WEVA 2014-199

Harrison/Robinson

F

29

29

WEVA 2014-217

Ohio/Shoemaker

F

16

16

WEVA 2014-231

Marion/Loveridge

F

36

36

WEVA 2014-298

Mon/blacksville

F

10

10

WEVA 2014-352

Marshall/McElroy

F

2

2

WEVA 2014-353

Marshall/McElroy

F

32

32

WEVA 2014-540

Harrison/Robinson

F

10

10

WEVA 2014-542

Marion/Loveridge

F

2

2

WEVA 2014-566

Marshall/McElroy

F

2

2

WEVA 2014-623

Harrison/Robinson

F

2

2

WEVA 2014-698

Mon/blacksville

F

2

2

WEVA 2014-741

Marshall/McElroy

F

2

2

WEVA 2014-771

Mon/blacksville

F

1

1

WEVA 2014-799

Marion/Loveridge

F

5

5

WEVA 2014-800

Marion/Loveridge

F

1

1

WEVA 2014-801

Marshall/McElroy

F

1

1

WEVA 2014-895

Marion/Loveridge

F

2

2

WEVA 2014-912

Harrison/Robinson

F

2

2

WEVA 2014-1032

Marshall/McElroy

F

1

1

WEVA 2014-2041

Mon/blacksville

F

1

1

WEVA 2014-2042

Mon/blacksville

F

2

2

WEVA 2014-2040

Mon/blacksville

F

5

5

WEVA 2014-1044

Mon/blacksville

F

30

30

WEVA 2014-786

Mon/blacksville

F

30

30

WEVA 2012-1118

Mon/blacksville

F

17

17

WEVA 2012-937

Mon/blacksville

P

19

4

WEVA 2014-541

Marion/Loveridge

P

51

50

WEVA 2014-543

Ohio/Shoemaker

P

15

14

WEVA 2014-567

Marshall/McElroy

P

31

22

WEVA 2014-624

Harrison/Robinson

P

8

2

WEVA 2014-625

Ohio/Shoemaker

P

25

12

WEVA 2014-653

Marion/Loveridge

P

20

8

WEVA 2014-740

Marshall/McElroy

P

14

5

WEVA 2014-770

Harrison/Robinson

P

11

2

WEVA 2014-772

Mon/blacksville

P

25

14

WEVA 2014-784

Marion/Loveridge

P

46

24

WEVA 2014-808

Mon/blacksville

P

8

5

WEVA 2014-835

Marshall/McElroy

P

39

4

WEVA 2014-872

Ohio/Shoemaker

P

73

42

WEVA 2014-913

Harrison/Robinson

P

26

2

WEVA 2014-943

Mon/blacksville

P

61

24

WEVA 2014-1017

Harrison/Robinson

P

15

1

WEVA 2014-1033

Marshall/McElroy

P

31

4

WEVA 2014-1110

Mon/blacksville

P

19

2

WEVA 2014-1124

Harrison/Robinson

P

13

1

WEVA 2011-2408

Marion/Loveridge

P

5

2

[1] All Docket
Numbers contained in this settlement are listed in Appendix A, attached hereto.

[2]
This
Decision is being amended solely to correct the A.C. No. for the lead docket,
Docket No. WEVA 2011-1314; and the footnote number regarding payment
information, now correctly reflected as footnote number 4.

[3] All of the
citations/orders issued after December 6, 2013, have been fully resolved by
Respondent and were the subject of Decisions Approving Partial Settlements.

[4] Payment should
be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR,
PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 63179-0390