Secretary of Labor v. Rockwell Mining, LLC

Plain-English summary

MSHA cited Rockwell Mining nine times at the Gateway Eagle Mine, an underground coal mine, and originally assessed $4,611 in penalties. The parties proposed settling for $3,704, with several citations modified. Two ventilation-plan citations and two trailing-cable citations were reduced from moderate to low negligence, and a permissibility citation had its likely injury lowered from fatal to lost workdays. Judge William B. Moran approved the settlement as meeting the section 110(i) criteria and ordered payment within 30 days. In a footnote he flagged two concerns: the operator's claim that no dust was visible conflicted with a citation stating airborne dust was seen at the continuous miner, and the two ventilation citations received identical reductions even though one was 12 percent below the required airflow and the other was 43 percent below.

Decision snapshot

• Cited standard(s): 30 C.F.R. §§ 75.370(a)(1) (ventilation plan), 75.512 (electrical equipment examination), and 75.604(b) (permanent cable splices)
• Outcome: Settlement approved, five citations modified, and the total penalty reduced from $4,611 to $3,704.
• Key point: A judge may approve a settlement while still noting on the record that identical penalty reductions for materially different violations look undifferentiated.

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

February 6, 2017

SECRETARY
OF LABOR,                                :     CIVIL PENALTY PROCEEDING

MINE
SAFETY AND HEALTH                      :

ADMINISTRATION
(MSHA),                        :     Docket No. WEVA
2016-0514

Petitioner,                          :     A.C.
No. 46-06618-411984

v.                                                   :    

:    

ROCKWELL
MINING, LLC,                            :     Mine: Gateway Eagle
Mine

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. [1]
The CLR has filed a motion to approve settlement. The originally assessed
amount was $4,611.00, and the proposed settlement is for $3,704.00. The CLR
also requests that several citations be modified, as indicated 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

9066897                           $392.00                            $392.00

9064821                           $745.00                            $521.00

9066787                           $745.00                            $521.00

9066899                           $392.00                            $392.00

9064822                           $585.00                            $585.00

9066900                           $224.00                            $224.00

9064219                           $873.00                            $611.00

9064220                           $263.00                            $184.00

9066905                           $392.00                            $274.00

TOTAL:                      $4,611.00                         $3,704.00

The
Secretary presents the following bases for the proposed reductions and
modifications in this case:

Regarding
Citation No. 9064821, [2]
which alleged a violation of 30 C.F.R. § 75.370(a)(1):

Respondent contends that the
negligence of the citation was over-evaluated. Respondent would argue at
hearing that this citation was observed half-way through the mining cycle. The
section foreman stated that he took a proper air reading and adjusted the line
curtain prior to the start of this particular cut. He states they were in
compliance with all aspects of their approved ventilation plan at that time of
his examination. Respondent contends that after the initial ventilation check
performed by the foreman, he had not returned to the entry where the violation
existed prior to when the inspector observed and cited the conditions listed in
the citation. The required cfm was 9,000 and the amount observed was 7,917 cfm.
This condition was found to be less than 13% deficient of the required methane
and dust control plan. Foreman states the condition was caused by shuttle cars
running through check curtains, while traveling from the continuous mining
machine to the section dump and equipment operator error. No visible dust was
observed during cutting cycle. Therefore, since no dust was observed, the
operator never thought to shut down for another air reading. The remaining
cited conditions would have occurred after the start of the cut and as the
continuous miner had advanced into the cut. The Secretary agrees to modify the
negligence by reducing the negligence from “moderate” to “low”, and reduce the
original penalty from $745 to $521.

Regarding
Citation No. 9066787, [3]
which alleged a violation of 30 C.F.R. § 75.370(a)(1):

Respondent contends that the
negligence of the citation was over-evaluated. Respondent would argue at
hearing that this citation was observed half-way through the mining cycle. The
section foreman stated that he took a proper air reading and adjusted the line
curtain prior to the start of this particular cut. He states they were in
compliance with all aspects of their approved ventilation plan at that time of
his examination. Respondent contends that after the initial ventilation check
performed by the foreman, he had not returned to the entry where the violation
existed prior to when the inspector observed and cited the conditions listed in
the citation. The required cfm was 9,000 and the amount observed was 5,100 cfm.
Foreman states the condition was caused by shuttle cars running through check
curtains, while traveling from the continuous mining machine to the section
dump and equipment operator error. No visible dust was observed at the miner
during the cutting cycle. Therefore, since no dust was observed, the operator
never thought to shut down for another air reading. The remaining cited
conditions would have occurred after the start of the cut and as the continuous
miner had advanced into the cut. The Secretary agrees to modify the negligence
by reducing the negligence from “moderate” to “low”, and reduce the original
penalty from $745 to $521.

Regarding
Citation No. 9064219, which alleged a violation of 30 C.F.R. § 75.512:

Respondent contends that the
gravity of the citation is over-evaluated. Respondent would argue at hearing
that this particular citation is considered a fire hazard for the continuous
mining machine cable, not an electrical shock hazard. If an accident occurred
it would more likely cause smoke inhalation, resulting in lost workdays. The
Secretary agrees to modify the gravity by reducing the injury or illness from
“fatal” to “lost workdays”, and reduce the original penalty from $873 to $611.

Regarding
Citation No. 9064220, which alleged a violation of 30 C.F.R. § 75.604(b):

Respondent contends that the
negligence of the citation was over-evaluated. Respondent would argue at
hearing that this citation was observed when the inspector had the operator
remove all the cable from the reel. At this time the opening was found in the
cable, which would have been on the reel while the machine was in operation and
would not have been seen by the operator. Respondent would also argue that the
only examination required is a weekly exam, which is once per week (not every
seven days). Therefore, the Secretary agrees that the cited condition could
have occurred since the most recent examination and has no evidence as to when
the condition occurred. The Secretary agrees to modify the negligence by
reducing the negligence from “moderate” to “low”, and reduce the original
penalty from $263 to $184.

Regarding
Citation No. 9066905, which alleged a violation of 30 C.F.R. § 75.604(b):

Respondent contends that the
negligence of the citation was over-evaluated. Respondent would argue at
hearing that this citation was observed when the inspector had the operator
remove all the cable from the reel. At this time the opening was found in the
cable, which would have been on the reel while the machine was in operation and
would not have been seen by the operator. Respondent would also argue that the
only examination required is a weekly exam, which is once per week (not every
seven days). Therefore, the Secretary agrees that the cited condition could
have occurred since the most recent examination and has no evidence as to when
the condition occurred. The Secretary agrees to modify the negligence by
reducing the negligence from “moderate” to “low”, and reduce the original
penalty from $392 to $274.

WHEREFORE , the motion for approval of
settlement is GRANTED .

It
is ORDERED that Citation Nos. 9064821 , 9066787,
9064220, and 9066905 be MODIFIED to low negligence .

It
is ORDERED that Citation No. 9064219 be MODIFIED to lost workdays
or restricted duty.

It
is further ORDERED that Respondent pay a penalty of $ 3,704.00
within 30 days of this order. [4]
Upon receipt of payment, this case is DISMISSED .

/s/ William B. Moran

William B. Moran

Administrative
Law Judge

Distribution:

David C. Trent, Conference &
Litigation Representative, U.S. Department of Labor, MSHA, 4499 Appalachian
Highway, Pineville WV 24874

John Opperman, 3228 Summit Square Place, Suite 180, Lexington,
KY 40509

[1] It is
DETERMINED that the Conference and Litigation Representative (CLR) is
accepted to represent the Secretary in accordance with the notice of limited
appearance he has filed with the penalty petition. Cyprus Emerald Res. Corp. ,
16 FMSHRC 2359 (Nov. 1994).

[2] The Court would
note that while the motion relates that although the foreman stated that the
condition was caused by shuttle cars running through check curtains, while
traveling from the continuous mining machine to the section dump, and by
equipment operator error, the citation asserts that the line curtain had been
“rolled up” to the 5th row of permanent supports. In connection with another
ventilation plan violation issued three days later, Citation No. 9066787, it is
noted that the miners were retrained on the ventilation plan.

[3] This citation
alleges that “upon approaching the continuous mining machine extracting coal in
the crosscut, visible dust is airborne in the entry.” This conflicts with the
mine operator’s assertion that “[n]o visible dust was observed during cutting
cycle [and] . . . . since no dust was observed, the operator never thought to
shut down for another air reading.” The motion does not address this conflict. It
is also noted that, for this ventilation violation deficiency, there was a 43%
reduction from the minimum 9,000 cfm requirement. It was this
second alleged ventilation violation that triggered the inspector’s requirement
that the miners be retrained on the ventilation plan. The Court would also note
its concern that, despite different facts, both citations received the
identical reductions. For Citation Nos. 9064821, the 12% reduction from the
required 9,000 cfm resulted in a settlement from $745 to $521. Yet, for
Citation No. 9066787, a 43% reduction from the minimum brought about the same
result, from $745 to $521. This has at least the appearance of undifferentiated
reductions, especially where the same type of violation was cited a few days
earlier.  

[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