Secretary of Labor v. Consolidation Coal Co. and McElroy Coal Co. (ALJ decision, August 14, 2015)

Secretary of Labor v. Consolidation Coal Co. and McElroy Coal Co. (FMSHRC WEVA 2011-1314, et al.): $3.31 million global settlement approved

Decision type

ALJ decision

Docket

WEVA 2011-1314

Decided

August 14, 2015

Presiding judge

Janet G. Harner

Outcome

Settled

Precedential status

Final order, not precedent

Checked against source

2026-08-02

Cited standards

30 C.F.R. § 75.202 30 C.F.R. § 75.220 30 C.F.R. § 75.360 30 C.F.R. § 75.370 30 C.F.R. § 75.400 30 C.F.R. § 75.517 30 C.F.R. § 75.1403 30 U.S.C. § 815(d) 30 U.S.C. § 820(a)(2) 30 U.S.C. § 820(i)

Official source

Read the official release (fmshrc.gov)

PDF

View Official PDF

Apply this to your situation

This order from 2015 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.

Final ALJ decision, not Commission precedent

This amended decision became final under the 40-day rule in 30 U.S.C. § 823(d)(1) because no later Commission review appears in the official index. It binds the parties but is not Commission precedent. The full text below is from the official FMSHRC release.

About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official FMSHRC release. The full text is the agency's own release.

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

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

WEVA 2011-2248

Marion/Loveridge

WEVA 2011-900

Harrison/Robinson

WEVA 2012-1052

Marshall/McElroy

WEVA 2012-1115

Ohio/Shoemaker

WEVA 2012-1143

Marion/Loveridge

WEVA 2012-1193

Marshall/McElroy

WEVA 2012-1194

Marshall/McElroy

WEVA 2012-1256

Harrison/Robinson

WEVA 2012-1257

Harrison/Robinson

WEVA 2012-1258

Ohio/Shoemaker

WEVA 2012-1460

Marshall/McElroy

WEVA 2012-1489

Marshall/McElroy

WEVA 2012-1642

Harrison/Robinson

WEVA 2012-213

Harrison/Robinson

WEVA 2012-322

Marshall/McElroy

WEVA 2012-471

Marshall/McElroy

WEVA 2012-512

Marion/Loveridge

WEVA 2012-634

Marshall/McElroy

WEVA 2012-706

Harrison/Robinson

WEVA 2012-772

Marshall/McElroy

WEVA 2012-773

Marshall/McElroy

WEVA 2012-827

Harrison/Robinson

WEVA 2012-873

Marshall/McElroy

WEVA 2012-874

Marshall/McElroy

WEVA 2012-97

Marshall/McElroy

WEVA 2012-973

Marion/Loveridge

WEVA 2012-974

Marion/Loveridge

WEVA 2012-975

Marshall/McElroy

WEVA 2012-98

Marshall/McElroy

WEVA 2012-995

Marion/Loveridge

WEVA 2013-50

Harrison/Robinson

WEVA 2013-51

Marion/Loveridge

WEVA 2013-52

Marion/Loveridge

WEVA 2013-1008

Marion/Loveridge

WEVA 2013-1028

Marshall/McElroy

WEVA 2013-1029

Marshall/McElroy

WEVA 2013-1060

Mon/blacksville

WEVA 2013-1079

Marion/Loveridge

WEVA 2013-1080

Marion/Loveridge

WEVA 2013-1087

Harrison/Robinson

WEVA 2013-1088

Ohio/Shoemaker

WEVA 2013-1132

Marshall/McElroy

WEVA 2013-1133

Marshall/McElroy

WEVA 2013-1134

Harrison/Robinson

WEVA 2013-1156

Ohio/Shoemaker

WEVA 2013-1167

Harrison/Robinson

WEVA 2013-1201

Mon/blacksville

WEVA 2013-1213

Marion/Loveridge

WEVA 2013-1226

Marshall/McElroy

WEVA 2013-1251

Ohio/Shoemaker

WEVA 2013-1286

Harrison/Robinson

WEVA 2013-1287

Marion/Loveridge

WEVA 2013-1288

Marion/Loveridge

WEVA 2013-1291

Mon/blacksville

WEVA 2013-1340

Marshall/McElroy

WEVA 2013-397

Harrison/Robinson

WEVA 2013-451

Harrison/Robinson

WEVA 2013-501

Mon/blacksville

WEVA 2013-571

Marshall/McElroy

WEVA 2013-572

Marshall/McElroy

WEVA 2013-573

Ohio/Shoemaker

WEVA 2013-574

Ohio/Shoemaker

WEVA 2013-584

Harrison/Robinson

WEVA 2013-636

Marshall/McElroy

WEVA 2013-672

Marshall/McElroy

WEVA 2013-695

Ohio/Shoemaker

WEVA 2013-696

Ohio/Shoemaker

WEVA 2013-698

Ohio/Shoemaker

WEVA 2013-707

Harrison/Robinson

WEVA 2013-708

Harrison/Robinson

WEVA 2013-790

Marshall/McElroy

WEVA 2013-791

Marshall/McElroy

WEVA 2013-800

Ohio/Shoemaker

WEVA 2013-838

Mon/blacksville

WEVA 2013-883

Harrison/Robinson

WEVA 2013-929

Marshall/McElroy

WEVA 2013-936

Marion/Loveridge

WEVA 2013-956

Harrison/Robinson

WEVA 2013-960

Ohio/Shoemaker

WEVA 2014-9

Ohio/Shoemaker

WEVA 2014-25

Harrison/Robinson

WEVA 2014-29

Marion/Loveridge

WEVA 2014-38

Marion/Loveridge

WEVA 2014-73

Mon/blacksville

WEVA 2014-189

Harrison/Robinson

WEVA 2014-199

Harrison/Robinson

WEVA 2014-217

Ohio/Shoemaker

WEVA 2014-231

Marion/Loveridge

WEVA 2014-298

Mon/blacksville

WEVA 2014-352

Marshall/McElroy

WEVA 2014-353

Marshall/McElroy

WEVA 2014-540

Harrison/Robinson

WEVA 2014-542

Marion/Loveridge

WEVA 2014-566

Marshall/McElroy

WEVA 2014-623

Harrison/Robinson

WEVA 2014-698

Mon/blacksville

WEVA 2014-741

Marshall/McElroy

WEVA 2014-771

Mon/blacksville

WEVA 2014-799

Marion/Loveridge

WEVA 2014-800

Marion/Loveridge

WEVA 2014-801

Marshall/McElroy

WEVA 2014-895

Marion/Loveridge

WEVA 2014-912

Harrison/Robinson

WEVA 2014-1032

Marshall/McElroy

WEVA 2014-2041

Mon/blacksville

WEVA 2014-2042

Mon/blacksville

WEVA 2014-2040

Mon/blacksville

WEVA 2014-1044

Mon/blacksville

WEVA 2014-786

Mon/blacksville

WEVA 2012-1118

Mon/blacksville

WEVA 2012-937

Mon/blacksville

WEVA 2014-541

Marion/Loveridge

WEVA 2014-543

Ohio/Shoemaker

WEVA 2014-567

Marshall/McElroy

WEVA 2014-624

Harrison/Robinson

WEVA 2014-625

Ohio/Shoemaker

WEVA 2014-653

Marion/Loveridge

WEVA 2014-740

Marshall/McElroy

WEVA 2014-770

Harrison/Robinson

WEVA 2014-772

Mon/blacksville

WEVA 2014-784

Marion/Loveridge

WEVA 2014-808

Mon/blacksville

WEVA 2014-835

Marshall/McElroy

WEVA 2014-872

Ohio/Shoemaker

WEVA 2014-913

Harrison/Robinson

WEVA 2014-943

Mon/blacksville

WEVA 2014-1017

Harrison/Robinson

WEVA 2014-1033

Marshall/McElroy

WEVA 2014-1110

Mon/blacksville

WEVA 2014-1124

Harrison/Robinson

WEVA 2011-2408

Marion/Loveridge

[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

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