Secretary of Labor, MSHA v. Brody Mining, LLC

Plain-English summary

MSHA cited two oil leaks on a Fletcher roof bolter and proposed total penalties of $71,400. Brody Mining would have presented evidence that its foreman reasonably believed the leaks did not require the machine's immediate removal from service and that the oil was unlikely to ignite or cause serious injury. The parties agreed to convert both enforcement actions to section 104(a) citations, reduce negligence to moderate, and cut each penalty from $35,700 to $22,000. Judge William S. Steele found the agreement appropriate under the Mine Act's penalty criteria. He approved a total settlement of $44,000.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 815(d) and 820(i)
• Outcome: Two roof-bolter oil citations were modified and settled for total penalties of $44,000.
• Key point: Evidence about a foreman's reasoned hazard assessment and the low likelihood of oil ignition supported reducing both negligence and penalties.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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: 412-920-8689

February 11, 2014

SECRETARY OF LABOR

MINE SAFETY AND HEALTH   

ADMINISTRATION (MSHA),

Petitioner

v.

BRODY MINING, LLC,

Respondent

CIVIL PENALTY PROCEEDING

Docket No. WEVA 2013-674

A.C. No. 46-09086-314409

Mine: Brody Mine No. 1

ORDER TO MODIFY

DECISION
APPROVING SETTLEMENT

ORDER TO PAY

Before:  Judge Steele

This case is before me upon a
petition for assessment of a civil penalty under section 105(d) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). The Secretary proposed
penalties totaling $71,400.00 for the violations alleged in Docket No. WEVA 2013-674.
The parties have agreed to settle this docket for penalties totaling $44,000.00.

The Secretary requests that Citation
Nos. 3563916 and 3563917 be modified to 104(a) Citations with “Moderate”
negligence. This modification is requested because at hearing because the
Respondent would present evidence that in the experienced judgment of the
day-shift foreman, the cited oil leaks on the #409 Fletcher Roof Bolter did not
pose a hazard such that the machine had to be taken out of service immediately.
Therefore the foreman’s reasoned decision not to take the machine out of
service did not constitute high negligence. The Respondent would further
present evidence that the Roof Bolter was not likely to become hot enough to
ignite the leaked oil, and it was not reasonably likely that the accumulation
of oil would cause a mine fire or lead to serious injury. Based on this
additional information and the modifications above, the Secretary has requested
reductions in penalties in each Citation, from $35,700.00 to $22,000.00.

I have
considered the representations and documentation submitted in these cases, and
I conclude that the proffered settlement is appropriate under the criteria set
forth in section 110(i) of the Act.

WHEREFORE, the motion for approval of settlement is GRANTED.

It is further ORDERED that the operator pay a penalty of $44,000.00
within 30 days of this order.[1]
Upon receipt of payment, this case is DISMISSED.

/s/
William S. Steele 

William S.
Steele

Administrative
Law Judge

Distribution:

Robert
Alan Kelly, Office of the Regional Solicitor, U.S. Dept. of Labor, 1100 Wilson Blvd., 22nd Floor West, Arlington, VA 22209-2247

Michael
T. Cimino, Jackson Kelly PLLC, 500 Lee St. East, Suite 1600, P.O. Box 533,
Charleston, WV 25322

/mzm

[1] 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