Secretary of Labor v. Mingo Logan Coal, LLC (ALJ decision, December 18, 2017)

Plain-English summary

MSHA cited Mingo Logan Coal because loose rock, a track rail, and a wooden cable spoon lay beneath an alternate-escapeway lifeline for six crosscuts, allegedly making it ineffective during an emergency. The parties proposed cutting that citation's penalty in half while leaving its S&S designation unchanged, based partly on the availability of the primary escapeway and disagreement over whether an injury was reasonably likely. Judge Priscilla M. Rae held that emergency conditions must be assumed when evaluating an escapeway standard and that a primary escapeway does not excuse defects in the alternate route. She also sought facts explaining how the lifeline remained accessible and why the fifth citation under the same standard in two years supported mitigation, but no amended motion arrived. The Judge rejected settlement and set the seven-citation case for hearing.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.380(d)(7)(iv)
• Outcome: The proposed settlement was rejected, and the case was set for a February 16, 2018 hearing.
• Key point: An alternate-escapeway violation must be evaluated assuming an emergency, without relying on the primary escapeway as a substitute safety measure.

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

December 18,

2017

SECRETARY

OF LABOR

MINE

SAFETY AND HEALTH   

ADMINISTRATION

(MSHA),

Petitioner

v.

MINGO

LOGAN COAL, LLC,

Respondent

CIVIL

PENALTY PROCEEDING

Docket

No. WEVA 2017-0370

A.C.

No. 46-09029-435040

Mine:

Mountaineer II

ORDER

REJECTING

SETTLEMENT MOTION AND NOTICE OF HEARING

Before:                        Judge

Rae

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). On November 8, 2017, the Secretary filed a motion pursuant to Section

110(k) of the Mine Act, 30 U.S.C. § 820(k), seeking approval of the proposed

settlement (“Secretary’s motion”). [1]

The Secretary’s motion proposes a reduction in penalty from $20,280.00 to

$14,242.00. The Solicitor specifically requests a reduction in penalty for Citation

No. 9068069 from $12,075.00 to $6,037.00. Citation No. 9068069 alleges the

following:

The lifeline in the alternate escapeway

is not located in such a manner for miners to use effectively to escape

starting at the track switch for Cedar Grove Mains Section and extending for a

distance of six crosscuts inby towards the #18 Head gate section. Directly

under this lifeline [are] extraneous materials in the form of loose rock

measuring from 2 inches up to 12 inches thick, and a track rail, and a wooden

cable spoon.

Standard 75.380(d)(7)(iv)[ [2] ]

was cited 5 times in two years at [the subject] mine.

Citation

No. 9068069. The violation was designated as a significant and substantial

contribution to a mine safety hazard (“S&S”).

The motion submitted by the Secretary

provided the following information in support of the penalty reduction:

The Respondent has argued that the

conditions cited in Citation Nos. 9068069 were not reasonably likely to result

in an injury and therefore should not have been designated as S&S. The

Secretary does not agree that such a showing is necessary for an S&S

finding. However, as demonstrated in the recent Commission decision in Consolidation

Coal Company , [39 FMSHRC 1737 (Sept. 2017)], the Secretary acknowledges the

uncertainty of the outcome of that issue and has agreed to the reduced penalty

amount in order to resolve this proceeding.

Secretary’s Motion at 3.

On November 13, 2017, the solicitor was

sent an email asking him to clarify the factual basis for the penalty

reduction, which was entirely lacking from the original settlement motion, and

to explain how the Commission’s recent Consolidation Coal decision

reflected uncertainty over the outcome of the S&S issue in this proceeding,

given the Commission’s well-settled case law that the existence of an emergency

must be assumed when evaluating the reasonable likelihood of an injury

resulting from a violation of an emergency standard.

The solicitor provided the following

additional information in response:

The justification for the agreed-upon

reduction is the uncertainty of the outcome of the gravity and S&S issues

being challenged by the Respondent. In the C onsolidation Coal Company

decision, as well as in Newtown Energy , 38 FMSHRC 2033 ([Nov.] 2016),

two of the current Commissioner’s [sic] stated that the second element of the Mathies

test requires a showing by the Secretary that the hazard contributed to was

reasonably likely to occur. The Secretary does not agree with this reading of

the Mathies test. Nevertheless, the Secretary recognizes that given the

current split of opinion at the Commission, the outcome of this issue is

uncertain. Even if an underlying emergency were assumed to have occurred, the

Respondent argues that cited condition was not reasonably likely to result in

fatal injuries to 20 miners as alleged in the citation. This was an alternate

escapeway, miners would use the primary escapeway and the cited lifeline was in

place and accessible. Should this matter go to hearing, the Secretary would

argue that the gravity findings are supported. Nevertheless, the Secretary

recognizes that the outcome of that issue is uncertain and the judge could rule

in the Respondent’s favor. The Secretary values a settlement where the citation

is affirmed as issued. The Secretary has also considered that as part of the

settlement, the Respondent has agreed to accept the other 6 citations in the

docket as issued and as assessed.

Solicitor’s November 13, 2017 email to

the Court.

The

solicitor was subsequently informed that this justification was insufficient

and that the settlement could not be approved in its current form. The

solicitor was also informed of the following problems with the settlement motion

that the parties could seek to avoid in an amended settlement motion.

Most significantly, even though the

settlement does not delete the S&S designation, the substantial 50% penalty

reduction proposed appears largely predicated on S&S arguments that are contrary

to law. The Commission has repeatedly held, including after Newtown ,

that the existence of an emergency must be assumed when considering the

reasonable likelihood of a hazard or injury for a violation of an emergency

standard. See ICG Illinois , 38 FMSHRC 2473, 2476 (Oct. 2016).

Additionally, the presence of a primary escapeway is immaterial to the analysis

of whether a violation in the secondary escapeway was reasonably likely to lead

to injury. In fact, the Commission and its ALJ’s have previously rejected the

exact same argument now offered by the parties in this matter for the exact

same mandatory safety standard at issue here. See Black Beauty Coal Co. ,

36 FMSHRC 1121, 1125 n.5 (May 2014) (“In challenging the S&S determination,

Black Beauty raises the presence of other safety measures, such as a viable

primary escapeway, . . . as mitigating the S&S determination. The

Commission and courts have soundly rejected this line of argument.”) aff’g

33 FMSHRC 1174, 1178-79 (May 2011) (ALJ) (rejecting this argument after finding

that a primary escapeway “is equally vulnerable to the effects of a fire,”

which can “mak[e] it difficult, if not impossible, to see,” and can cause

“panic and disorientation” among even trained miners.) Neither Newtown

nor the separate opinions in Consolidation Coal sought to overturn these

holdings regarding the S&S analysis for escapeway or emergency standards.

Therefore, the parties were informed that I could not accept such a substantial

reduction in penalty based on arguments that run entirely counter to black

letter law. Instead, the condition cited in and around the escapeway needed to

be addressed standing on its own, and assuming an emergency event, in

determining whether the operator’s S&S arguments justified a reduction in

penalty.

The solicitor was also asked to provide

additional information clarifying the basis for the operator’s argument that

the cited lifeline was in fact accessible, since the citation seemed to suggest

that the presence of extraneous material in the form of loose rock, a track

rail, and a wooden cable spoon rendered the lifeline ineffective for use for a

distance of six crosscuts. The solicitor was next informed that any arguments

regarding fatal injuries to 20 miners, while not relevant to the S&S

justification originally provided in the motion, may go to the gravity of the

violation in an amended motion, but that I did not believe that this argument,

alone, could justify a 50% penalty reduction. Finally, the parties were

reminded of the information contained in the citation, noting that this was the

fifth time in two years that the operator had been cited under this standard,

and that this fact tended to argue against mitigation.

The parties were asked to promptly submit

an amended settlement motion that addressed these issues, or else the matter

would be set for hearing. No revision has been received.

Therefore, the Motion to Approve

Settlement is REJECTED and the parties are ORDERED to appear for

a hearing on the merits of the case.

NOTICE

OF HEARING

In accordance

with Section 105(d) of the Federal Mine Safety and Health Act of 1977, the

"Act," 30 U.S.C. §§ 801, et seq., this case is set for hearing in South

Charleston, West Virginia, on February 16, 2018, commencing at 8:30 AM . A

subsequent notice will identify the courthouse location.

The

hearing will be conducted in accordance with the Mine Act and the Commission’s

Procedural Rules addressing the subject, as set forth at 29 C.F.R. Part 2700,

Subpart G. The issues to be resolved are whether the Respondent violated the

Mine Act and the cited regulatory standards, and if so, the level of gravity

and degree of negligence of those violations which are proved, as well as the

appropriate civil penalty to be imposed.

The

parties are reminded to comply with the terms of any prehearing orders

previously issued. It is further ordered that any party intending to offer

exhibits at the hearing shall submit, twenty (20) days prior to the

commencement of the hearing, a marked copy of all exhibits to the opposing

party and the judge. The Secretary’s exhibits shall be designated “S-#” and

Respondent’s exhibits shall be designated “R-#.” Exhibits shall be clearly

marked and numbered seriatim. If opposing counsel has an objection to the

admission of any exhibit, he or she shall state the grounds for the objection

in writing and submit it to the judge and opposing counsel at least five (5)

days prior to the commencement of the hearing.

A

list of witnesses (including experts) and a statement as to their expected

testimony (and copy of any report prepared by an expert) shall also be

exchanged by the parties with a copy submitted to the judge twenty (20) days

prior to the commencement of the hearing.

Any

stipulations agreed upon by the parties shall be submitted to the judge five

(5) days prior to the commencement of the hearing.

Any

person planning on attending the hearing who requires special accessibility

features and/or any auxiliary aids (such as sign language interpreters) must

request those sufficiently in advance of the hearing to allow accommodation,

subject to the limitations set forth in 29 C.F.R. §2706.150(a) and §

2706.160(d).

If a

settlement is reached after the date set forth on this Notice, the parties are

directed to contact my law clerk, Roshan Dhillon, at 202-233-4010 or at [email protected]

immediately. Unless a written Order is issued upon my direction removing the

matter from the docket, the parties are directed to appear at the time and

place designated for hearing.

If you have any

questions or concerns, please contact Mr. Dhillon.

/s/

Priscilla M. Rae

Priscilla M. Rae

Administrative

Law Judge

Distribution

(Certified Mail):

Robert S.

Wilson, Esq., U.S. Department of Labor, 201 12 th Street South, Suite

401, Arlington, VA 22202-5450

Willie Barker,

Safety Manager, Mingo Logan Coal, LLC, P.O.E., SHarples, WV 25183

[1]

Section

110(k) of the Mine Act states that: “No proposed penalty which has been

contested

before the Commission under Section 815(a) of this title shall be compromised,

mitigated,

or settled except with the approval of the Commission.” 30 U.S.C. § 820(k).

[2] 75.380

(d)(7)(iv) requires that “[e]ach escapeway shall be . . . [p]rovided with a

continuous, durable directional lifeline or equivalent device that shall be . .

. [l]ocated in such a manner for miners to use effectively to escape.” 30

C.F.R. §

75.380(d)(7)(iv).