Secretary of Labor v. Spartan Mining Company, LLC

Plain-English summary

MSHA and Spartan Mining proposed settling two enforcement actions for $10,663, including the full $7,663 penalty for one order and a reduced $3,000 penalty for an accident-reporting citation. The citation alleged that Spartan waited at least 23 minutes after a 911 call to notify MSHA of an explosion that seriously injured a miner, who died six days later. Chief Judge Robert J. Lesnick held that the Mine Act requires a penalty of at least $5,000 for violating the 15-minute notification rule, without an exception based on low negligence, stress, or a short delay. He denied the settlement motion without prejudice because its proposed $3,000 penalty lacked a sufficient legal basis.

Decision snapshot

• Cited standards: 30 C.F.R. § 50.10(a); 30 U.S.C. § 820(a)(2)
• Outcome: The proposed $10,663 settlement was denied without prejudice because the accident-reporting penalty was below the statutory minimum.
• Key point: A settlement cannot reduce the penalty for violating the Mine Act's 15-minute accident-notification rule below the statutory minimum.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9950 / FAX: 202-434-9949

SECRETARY OF LABOR                           :           CIVIL
PENALTY PROCEEDING

MINE SAFETY AND HEALTH                :

ADMINISTRATION (MSHA),                  :           Docket
No. WEVA 2017-0455

Petitioner,                             :           A.C.
No. 46-01544-439958

:          

:

v.                                 :

:

SPARTAN MINING COMPANY, LLC,     :           Mine: Road Fork

51 Mine

Respondent.

ORDER DENYING SETTLEMENT
MOTION

Before:                       Judge Lesnick

This case is before me under section 105(d) of
the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. §
815(d). The Secretary has filed a motion to approve settlement. The motion
states that the parties have agreed to a reduction in the penalty from
$13,448.00 to $10,663.00. For the reasons set forth below, the Secretary’s motion
is DENIED.

As a preliminary matter, I note that the
Secretary’s motion at paragraph three highlights “maximizing” the
Secretary’s “prosecutorial impact” in agreeing to this settlement.
Insofar as this statement, as well as other statements related to prosecutorial
impact proffered by the Secretary, departs from Rule 31(b) and offers
information that is superfluous to the Commission’s authority to approve
settlements of Mine Act disputes,  see  30 U.S.C. § 820(k),
the statement is stricken from the Secretary’s motion pursuant to Commission
Procedural Rule 1(b), 29 C.F.R. § 2700.1(b), and Rule 12(f) of the
Federal Rules of Civil Procedure, Fed. Civ. P. 12(f). Under Commission
Procedural Rule 31(b), a motion to approve settlement “shall include . . .
facts in support of the amount of penalty agreed to in settlement,” 29 C.F.R.
§ 2700.31(b)(1), and nothing in the Secretary’s statement on
“prosecutorial impact” in any way lessens the burden of the parties to
show that a settlement is justified by the facts and circumstances surrounding
each individual compromise. 30 U.S.C. § 820(k). The Secretary's
insistence on larding settlement motions with unhelpful,
extraneous language in no way changes the fact that it is the  Commission  that
has  independent  “authority to assess all civil penalties
provided in [the Mine] Act.” 30 U.S.C. § 820(i).

This case involves two enforcement actions. The
Respondent has agreed to pay the full penalty of $7,663.00 proposed for section
104(g)(1) Order No. 9070664. Section 104(a) Citation No. 9066441 was issued for
a violation of the accident reporting requirements of 30 C.F.R. § 50.10(a),
and states as follows:

The operator failed to immediately
contact MSHA at once without delay and within 15 minutes upon knowledge of an
explosion at the route 16 #3 shaft which resulted in serious injury to a miner
on 07/29/2016. The miner succumbed to his injuries six days later on
08/04/2016. According to the 911 call center recording[,] the mine dispatcher
called at 12:13 p.m. informing 911 there had been an explosion and a miner was
in need of immediate medical care. The mine operator did not contact the
hotline until 12:36, at least 23 minutes after the call to the 911 center was
made.

In a subsequent communication with the Court, the Secretary
further clarified these allegations by stating that, “[a]ccording to MSHA’s
accident report, the accident occurred at ‘approximately 12:00 p.m.’” Notes
made by the inspector who issued the citation explain that the delay in
reporting the accident to MSHA was “‘due to the stress of the situation.’”
Motion at ¶ 4. In support of the settlement motion, the Secretary states:

The Respondent argues that management
was not negligent and that MSHA was notified as expediently as possible. . . .
Given the circumstances, the short amount of time involved, the available
evidence, as well as the uncertainties of litigation, the Secretary has
determined that a finding of low negligence and a corresponding penalty
reduction are justified. The parties agree that a penalty of $3,000.00 is
appropriate, is supported by the reduction in the negligence finding and is
consistent with 30 CFR Part 100.

Motion at ¶ 4. 1

The agreed upon penalty, however, is not
consistent with the plain terms of the Mine Act. In 2006, in response to the
tragic accidents at the Sago Mine and Aracoma Alma No. 1 Mine, Congress enacted
the Mine Improvement and New Emergency Response Act of 2006, Pub. L. No.
109-236, 120 Stat. 493 (“MINER Act”). Section 103(j) of the Mine Act requires a
mine operator to notify MSHA in the event of an accident occurring at its mine.
30 U.S.C. § 813(j).  Section 5(a) of the MINER Act amended Mine Act
section 103(j) such that “the notification required shall be provided by the
operator within 15 minutes of the time at which the operator realizes that the
death of an individual at the mine, or an injury or entrapment of an individual
at the mine which has a reasonable potential to cause death, has occurred.” Section
5(b) of the MINER Act amended Mine Act section 110(a) by adding a new
subsection providing that failure to meet the requirements of section 103(j)
relating to the 15 minute requirement “shall be assessed a civil penalty
. . . of not less than $5,000 and not more than $60,000.” 30 U.S.C. § 820(a)(2)
(emphasis added).

The statutory language is unequivocal. It
imposes a minimum  penalty of $5,000 for any violation of the 15
minute rule of section 103(j) without any reference whatsoever to mitigation
based on the facts or circumstances of a particular situation. Nor does that
statute advert to mitigation based on either a finding of low negligence or a
“short amount of time involved.”

Here, the Citation No. 9066441 alleges that an
accident occurred that injured a miner and ultimately led to the miner’s death.
It also alleges that the Respondent delayed notifying MSHA beyond the 15 minute
limit. Under the plain terms of the statute, which neither the Secretary nor
the Court are free to disregard, the penalty for such a violation “shall be
. . . not less than $5,000.”

Having considered the representations and
documen­tation submitted in this case, I therefore conclude that the proffered
settle­ment lacks a sufficient legal basis.

WHEREFORE , the motion for approval of
settlement is DENIED without prejudice.

/s/
Robert J. Lesnick

Robert
J. Lesnick

Chief
Administrative Law Judge

Distribution:

Robert S.
Wilson, Esq., U. S. Department of Labor, 201 12 th Street South,
Suite 401, Arlington, VA 22202-5450.

Eric
Silkwood, HardyPence, PLLC, 500 Lee Street, East, Suite 701, P.O. Box 2548,
Charleston, WV 25329.

/rd/tas

1 Although the violation set forth in Citation No.
9066441 is designated as being the result of “moderate” negligence, the
Secretary’s motion does not include a request that this designation by modified
to “low.”