Secretary of Labor v. Consolidation Coal Company
Secretary of Labor v. Consolidation Coal Company (FMSHRC WEVA 2015-36): Thirty citations settled for $48,000
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This order from 2017 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current MSHA standards and Commission precedent, with citations.
Plain-English summary
MSHA and Consolidation Coal Company settled 30 citations involving conditions at the Robinson Run No. 95 Mine. The settlement vacated Citation 8058726 and modified the negligence, gravity, injury, or affected-person findings for several other citations. The cited conditions included combustible accumulations, drill dust control, electrical cable protection, roof and rib control, rock dust, escapeways, maps, and preshift examinations. Judge William B. Moran found the settlement appropriate under the Mine Act's penalty criteria. The order reduced the total penalty from $68,550 to $48,000 and dismissed the case upon payment.
Decision snapshot
- Cited standard(s): 30 C.F.R. §§ 72.630(b), 75.1505(a), 75.202(a), 75.360(a)(1), 75.380(d)(7)(vi), 75.400, 75.403, and 75.517
- Outcome: One citation was vacated, several were modified, and the total penalty was reduced from $68,550 to $48,000.
- Key point: The judge approved negotiated citation changes and penalty reductions after considering the parties' factual rationales and litigation risks.
Full text (FMSHRC public release)
FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 Pennsylvania
Avenue, NW, Suite 520N
Washington, DC
20004-1710
Phone: (202) 434-9933
| Fax: (202) 434-9949
March 8, 2017
SECRETARY
OF LABOR, : CIVIL PENALTY PROCEEDING
MINE
SAFETY AND HEALTH :
ADMINISTRATION
(MSHA), : Docket No. WEVA 2015-0036
Petitioner, : A.C.
No. 46-01318-361663
v. :
:
CONSOLIDATION COAL CO. , : Mine:
Robinson Run No. 95
Respondent. :
DECISION APPROVING SETTLEMENT
Before: Judge
Moran
This
case is before the Court upon a petition for assessment of a civil penalty
under section 105(d) of the Federal Mine Safety and Health Act of 1977. The Secretary
has filed a motion to approve settlement. The originally assessed amount was $68,550.00,
and the proposed settlement is for $48,000.00. The Secretary has stated that
Citation No. 8058726
is vacated. The Secretary’s discretion to vacate a citation or order is
not subject to review. RBK Contr. Inc. , 15 FMSHRC 2099 (Oct. 1993). The Secretary also requests that several
citations be modified, as indicated in the table below.
The
Court has considered the representations submitted in this case and concludes
that the proffered settlement is appropriate under the criteria set forth in
section 110(i) of the Act.
The
settlement amounts are as follows:
Citation
No. Assessment Settlement
Amount
8056133 $2,282.00 $687.00
8056135 $1,304.00 $1,031.00
8056136 $1,944.00 $1,689.00
8058691 $5,080.00 $3,105.00
8058695 $5,080.00 $3,105.00
8060023 $2,282.00 $2,282.00
8060024 $2,282.00 $1,823.00
8056421 $1,530.00 $687.00
8058726 $1,944.00 vacated
8058698 $2,106.00 $1,100.00
8058699 $2,106.00 $1,100.00
8058700 $2,106.00 $1,100.00
8058701 $1,203.00 $1,203.00
8058729 $1,412.00 $1,412.00
8058703 $1,412.00 $1,412.00
8056597 $2,678.00 $2,012.00
8058706 $5,080.00 $4,105.00
8058707 $1,795.00 $1,795.00
8058708 $1,026.00 $1,026.00
8058709 $2,106.00 $1,100.00
8058743 $3,405.00 $1,563.00
8058710 $2,106.00 $1,100.00
8058749 $2,106.00 $2,106.00
8058750 $1,026.00 $1,026.00
8058711 $1,795.00 $1,795.00
8058599 $1,026.00 $1,026.00
8058600 $1,412.00 $1,412.00
8058865 $3,405.00 $687.00
8058766 $2,106.00 $2,106.00
8058768 $3,405.00 $3,405.00
TOTAL: $68,550.00 $48,000.00
The
Secretary presents the following bases for the proposed reductions and
modifications in this case:
Citation No.
30 C.F.R. §
Gravity & Negligence
Penalty Assessed
Settlement
Rationale
8056133 [1]
75.400
Accumulation of combustible materials.
S&S, Reasonably Likely, Lost Work Days/ Restricted
Duty, 4 Affected; Moderate
$2,282.00
$687.00
Modify to low negligence, 1 affected
Respondent would present evidence that the cited
conditions developed after the most recent pre-shift examination and existed
for less than one shift. Additionally, any smoke generated from a fire would
ventilate to the return thereby reducing the number of miners affected. Based
on this and the risks inherent in proceeding to hearing, the Secretary agreed
to the above modifications and reduction in penalty.
8056135 [2]
72.630(b)
Drill dust control at underground areas of underground
mines.
S&S, Reasonably Likely, Permanently Disabling, 1
Affected; Moderate
$1,304.00
$1,031.00
Modify to low negligence
Respondent would present evidence that the cited condition
was more difficult to detect than initially considered. Based on this and the
risks inherent in proceeding to hearing, the Secretary agreed to the above
modifications and reduction in penalty.
8056136 [3]
75.400
Accumulation of combustible materials.
S&S, Reasonably Likely, Lost Work Days/ Restricted
Duty, 3 Affected; Moderate
$1,944.00
$1,689.00
Modify to 1 affected
Respondent would present evidence that any smoke generated
from a fire caused by the cited conditions would ventilate to the return
thereby reducing the number of miners affected. Based on this and the risks
inherent in proceeding to hearing, the Secretary agreed to the above
modifications and reduction in penalty.
8058691 [4]
75.517
Power wires and cables; insulation and protection.
S&S, Reasonably Likely, Fatal, 1 Affected; Moderate
$5,080.00
$3,105.00
Modify to low negligence
Respondent would present evidence that, due to the
location of the cited condition, it was more difficult to observe than
initially considered. Based on this and the risks inherent in proceeding to
hearing, the Secretary agreed to the above modifications and reduction in
penalty.
8058695
75.517
Power wires and cables; insulation and protection.
S&S, Reasonably Likely, Fatal, 1 Affected; Moderate
$5,080.00
$3,105.00
Modify to low negligence
Respondent would present evidence that, due to the size
and location of the cited condition, it was more difficult to observe than
initially considered. Based on this and the risks inherent in proceeding to
hearing, the Secretary agreed to the above modifications and reduction in
penalty.
8060024
75.517
Power wires and cables; insulation and protection.
S&S, Reasonably Likely, Permanently Disabling, 1
Affected; Moderate
$2,282.00
$1,823.00
Modify to low negligence
Respondent would present evidence that the cited condition
developed after the most recent electrical examination and was not readily
observable. Based on this and the risks inherent in proceeding to hearing,
the Secretary agreed to the above modifications and reduction in penalty. [5]
8056421 [6]
75.202(a)
Protection from falls of roof, face and ribs.
S&S, Reasonably Likely, Lost Work Days/ Restricted
Duty, 1 Affected; Moderate
$1,530.00
$687.00
Modify to low negligence
Respondent would present evidence that the cited
conditions developed after the most recent weekly examination of the area,
and that miners rarely travel in this location. Based on this and the risks
inherent in proceeding to hearing, the Secretary agreed to the above
modifications and reduction in penalty.
8058698
75.403
Maintenance of incombustible content of rock dust.
Non-S&S, Unlikely, Fatal, 8 Affected; Moderate
$2,106.00
$1,100.00
Modify to low negligence, lost work/restricted duty, 2
affected
Respondent would present evidence that the cited
conditions were not visible to the unaided eye as the incombustible content
of the two samples was no more than 0.3% less than the required 80%. Based on
this and the risks inherent in proceeding to hearing, the Secretary agreed to
the above modifications and reduction in penalty.
8058699
75.403
Maintenance of incombustible content of rock dust.
Non-S&S, Unlikely, Fatal, 8 Affected; Moderate
$2,106.00
$1,100.00
Modify to low negligence, lost work/restricted duty, 2
affected
Respondent would present evidence that the cited
conditions were not visible to the unaided eye as the incombustible content
of the sample was no more than 0.9% less than the required 80%. Based on this
and the risks inherent in proceeding to hearing, the Secretary agreed to the
above modifications and reduction in penalty.
8058700
75.403
Maintenance of incombustible content of rock dust.
Non-S&S, Unlikely, Fatal, 8 Affected; Moderate
$2,106.00
$1,100.00
Modify to low negligence, lost work/restricted duty, 2 affected
Respondent would present evidence that the cited
conditions were not visible to the unaided eye as the incombustible content
of the sample was no more than 1.2% less than the required 80%. Based on this
and the risks inherent in proceeding to hearing, the Secretary agreed to the
above modifications and reduction in penalty.
8056597
75.380(d)(7)(vi)
Escapeways; bituminous and lignite mines.
Non-S&S, Unlikely, Fatal, 10 Affected; Moderate
$2,678.00
$2,012.00
Modify to lost work/restricted duty
Respondent would present evidence that the injuries
expected would be of the lost work/restricted duty variety from short delays
in escaping in an emergency. Based on this and the risks inherent in
proceeding to hearing, the Secretary agreed to the above modifications and
reduction in penalty.
8058706 [7]
75.517
Power wires and cables; insulation and protection.
S&S, Reasonably Likely, Fatal, 1 Affected; Moderate
$5,080.00
$4,105.00
Modify to low negligence
Respondent would present evidence that, due to the size
and location of the cited condition, it was more difficult to observe than
initially considered. Based on this and the risks inherent in proceeding to
hearing, the Secretary agreed to the above modifications and reduction in
penalty.
8058709
75.403
Maintenance of incombustible content of rock dust.
Non-S&S, Unlikely, Fatal, 8 Affected; Moderate
$2,106.00
$1,100.00
Modify to low negligence, lost work/restricted duty, 2
affected
Respondent would present evidence that the cited
conditions were difficult to detect as the incombustible content of the
samples were between 0.2% and 7.8% less than the required 80%. Based on this
and the risks inherent in proceeding to hearing, the Secretary agreed to the
above modifications and reduction in penalty.
8058743
75.1505(a)
Escapeway maps.
S&S, Reasonably Likely, Fatal, 1 Affected; Moderate
$3,405.00
$1,563.00
Modify to lost work/restricted duty
Respondent would present evidence that the injuries
expected would be of the lost work/restricted duty variety from short delays
in escaping in an emergency. Based on this and the risks inherent in
proceeding to hearing, the Secretary agreed to the above modifications and
reduction in penalty. [8]
8058710
75.403
Maintenance of incombustible content of rock dust.
Non-S&S, Unlikely, Fatal, 8 Affected; Moderate
$2,106.00
$1,100.00
Modify to low negligence, lost work/restricted duty, 2
affected
Respondent would present evidence that the cited
conditions were difficult to detect as the incombustible content of the
samples was only 2.2% less than the required 80%. Based on this and the risks
inherent in proceeding to hearing, the Secretary agreed to the above
modifications and reduction in penalty.
8058865 [9]
75.360(a)(1)
Preshift examination at fixed intervals.
S&S, Reasonably Likely, Lost Work Days/ Restricted
Duty, 1 Affected; High
$3,405.00
$687.00
Modify to unlikely, non-S&S
Respondent would present evidence that the most of the
underlying conditions leading to the examination violation were unlikely to
cause injury. Based on this and the risks inherent in proceeding to hearing,
the Secretary agreed to the above modifications and reduction in penalty.
WHEREFORE , the motion for approval of
settlement is GRANTED .
It
is ORDERED that Citation No. 8056133 be MODIFIED to low negligence and to 1
person affected.
It
is ORDERED that Citation Nos. 8056135, 8058691, 8058695, 8060024,
8056421, and 8058706 be MODIFIED
to low negligence.
It
is ORDERED that Citation No. 8056136 be MODIFIED to 1 person affected.
It
is ORDERED that Citation Nos. 8058698, 8058599, 8058700, 8058709,
and 8058710 be MODIFIED to 2 persons
affected, low negligence, and to lost work/restricted duty.
It
is ORDERED that Citation Nos. 8056597 and 8058743 be MODIFIED to lost
work/restricted duty.
It
is ORDERED that Citation No. 8058865 be MODIFIED to unlikely and non-S&S.
It
is further ORDERED that Respondent pay a penalty of $ 48,000.00
within 30 days of this order. [10]
Upon receipt of payment, this case is DISMISSED .
/s/
William B. Moran
William B. Moran
Administrative
Law Judge
Distribution:
Ryan M. Kooi, Esq., Office of the Regional Solicitor, The
Curtis Center, 170 S. Independence Mall West, Suite 630 E, Philadelphia, PA
19106
Eric T. Frye, Esq., FLAHERTY SENSABAUGH BONASSO PLLC, 200
Capitol Street, Charleston, WV 25338-3843
/KP
[1] The citation
asserted that, “Coal accumulations in the form of loose coal, coal fines and
coal dust exist at the 21- A Longwall Section (084-0 MMU) Tailpiece. 1).
Measured coal accumulations on the ‘walk side’ of the Tailpiece range from 10
inches deep, with ‘wear marks’ from the belt making contact with the coal, up
to 18 inches deep at the Tail Roller. 2) . [sic] Measured coal accumulations on
the ‘offside’ of the Tailpiece range from 6 inches deep to 14 inches deep, with
‘wear marks’ from the belt making contact with the coal. At the Tail roller the
measured coal is 36 inches deep, with the Tail Roller grinding up coal into a
fine coal and coal dust. This section operated on Day Shift and Afternoon Shift
mined 85 Shields. Standard 75.400 was cited 148 times in two years…” In the
Secretary’s motion, supporting a 70% proposed penalty reduction, he states in
part that the Respondent “would present evidence that the cited conditions
developed after the most recent pre-shift examination and existed for less than
one shift.”
[2] The citation asserted
that, “The Dust Collection System for the Fletcher Roof Bolter (Approval #
2G-2674A-5, Serial # 8804/2011315) operating on 21-A Longwall Section (084-0
MMU), is not maintained in a permissible and operating condition. When this
Roof Bolter was checked by this Inspector, at #2 Entry to #1 Entry, #29 Block,
the following conditions existed: 1). The front dust collection hose (connected
to the front drill head) has a measured 1 1/8 inch by 3/4inch hole, covered up
by electrical tape. 2). A measured 1 inch of white fine dust is found behind
the filter media (dust filter), which has the clean side of the dust collection
system contaminated. A sample of this white fine dust is being sent to the MSHA
Laboratory in Pittsburgh, Pa. for Quartz Analysis…” The Secretary’s motion
stated in part, “Respondent would present evidence that the cited condition was
more difficult to detect than initially considered.”
[3] This citation
asserted, “Combustible Material in the form of loose coal and fine coal has
been allowed to accumulate at the 21-A Longwall (084-0 MMU) Tailpiece. 1). Coal
grinded up into small fine coal exists at the Tail roller measuring 78 inches
long by 24 inches deep by 18 inches wide, making contact with the Tail roller.
2). At the outby end of the Tail Piece, where the V-Plow is, the coal
accumulations measured 7 feet long by 14 inches deep to 24 inches deep by 24
inches wide making contact with the belt. This is the third time, that this
Inspector has cited this condition at the 21-A Longwall Section Tailpiece
during this inspection Quarter …” (emphasis added). The Secretary’s motion
stated in part, “Respondent would present evidence that any smoke generated
from a fire caused by the cited conditions would ventilate to the return
thereby reducing the number of miners affected.” The inspection amended his
findings to unlikely and non-S&S, and the initially assessed penalty of
$1,944.00 was derived from those amended findings.
[4] The citation
asserted, “The trailing cable supplying power to the Co. #6170 Joy 14ED25 (S/N
JM6170) continuous miner being operated on the 1E, 040-0 MMU, working section,
is not insulated adequately and fully protected. There is a gap between a
taped splice and the outer jacket measuring 3" by 3/4, exposing the
inner energized leads” (emphasis added). In support of the proposed 39% penalty
reduction, the Secretary stated in part, “Respondent would present evidence
that, due to the location of the cited condition, it was more difficult to
observe than initially considered.”
[5] In considering
this rationale, the Court assumes that the Secretary considered the inspector’s
notes.
[6] This citation
alleged violations spanning several areas : “The ribs where miners work
or travel was not adequately supported or otherwise controlled in the following
locations in the #3 entry of the 21-A section: 1) No. 42-44 crosscut, the rib
was gapped 1-3 inches from the solid rib. The ribs (36 inches long, 24 inches
wide, and 3 inches thick; 32 inches long, 25 inches wide and 3 inches thick and
18 feet long, 25 inches wide and 3-4 inches thick) were pryed down. 2) No.
44-46 crosscut, a piece of rib (43 inches long by 50 inches wide and 2 inches
thick) was gapped 2-3 inches from the solid rib. 3) No. 46-48 crosscut, the rib
was gapped 3-4 inches from the solid rib. A piece 6 feet long by 31 inches wide
and 5 inches thick was pryed down. 4) No. 50 crosscut, a piece of rib 29 inches
long by 18 inches wide and 6 inches thick was gapped from the solid rib 1-3
inches. 5) No. 56-58 crosscut, a piece of rib 47 inches long by 50 inches wide
and 3 inches thick was gapped from the solid rib 2-3 inches. 6) No. 62-64
crosscut, a piece 72 inches long by 54 inches wide and 3 inches thick was
gapped from the solid rib 2-3 inches. 7) No. 74-76 crosscut, a piece of rib 40
inches long by 31 inches wide and up to 4 inches thick was gapped 2-3 inches
from the solid rib. 8) No. 76-78 crosscut, a piece of rib 48 inches long by 31
inches wide and 4 inches thick was gapped from the solid rib 1-3 inches. 9) No.
76-78 crosscut, a piece a rib 70 inches long by 28 inches wide and 6 inches
thick was gapped 2- 3 inches from the solid rib.” The Secretary’s motion stated
in part, “Respondent would present evidence that the cited conditions developed
after the most recent weekly examination of the area, and that miners rarely
travel in this location.” The Court notes that neither document indicates how
much time passed between the most recent examination and the inspection.
[7] The citation
alleged, “The trailing cable supplying power to the Co. #84 Joy shuttle car
being operated on the Tail Gate E, 088-0 MMU, working section, is not insulated
adequately and fully protected, in that [the] tape on the end of a 13” splice
is rolled back exposing the energized inner leads. The opening measures 1” by
1/8”. Outer jackets shall be replaced in such manner as to prevent moisture
from entering the cable. [Assuming] normal mining were to continue and the
condition [were] left unabated, it is reasonably likely a miner would receive
fatal injuries due to electrocution.” The Secretary’s motion stated in part,
“Respondent would present evidence that, due to the size and location of the
cited condition, it was more difficult to observe than initially considered.”
[8] The Court
assumes that the Secretary considered the distance between the #6 block and the
4 block when proposing the 54% reduction in penalty amount. No filings
submitted contain information on this point.
[9] The citation
alleged, “An inadequate examination has been conducted for the oncoming
afternoon shift on the Tailgate E continuous miner section (088-0 mmu). The
following conditions existed at the start of the oncoming shift as cited in
violation numbers 8058599, 8058600, 8058861. A scoop has been parked under the
lifeline at the end of the track limiting the width of the escapeway to 22”.
Combustible material in the form of coal fines and lump coal has accumulated
under and along side the conveyor belt from 62 block to 66 block. Combustible
material is present in the #1 entry inby the feeder, in the #1 to #2 cross-cut
at 67 block and in the #1 to #2 cross-cut at 68 block. The accumulations are
obvious and extensive. A hole is present in the ventilation control between the
belt entry and haulage intake escapeway at 62 block. None of the cited
conditions have been listed in the pre-shift record book. There has been no
production on the section since afternoon shift on 8/7/2014.” In support of the
proposed 80% reduction in the proposed penalty amount, the Secretary’s motion
stated in part, “Respondent would present evidence that the most of the
underlying conditions leading to the examination violation were unlikely to
cause injury” (emphasis added). The citation was issued at 6:30 p.m. on August
8, 2014.
[10] 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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