Secretary of Labor v. Appalachian Resource West Virginia, LLC

Plain-English summary

MSHA cited two hazards on the same haul truck at Appalachian Resource West Virginia’s Tug Fork Preparation Plant. One citation involved a loose railing at the top of an eight-to-nine-foot ladder, and the other involved the equipment operator’s failure to wear a seat belt. The settlement changed the railing citation from significant and substantial to non-S&S and reduced its penalty from $1,069 to $215, while the $296 seat-belt citation remained unchanged. Judge Moran strongly questioned the railing reduction and rejected the Secretary’s claim that an S&S designation could simply be withdrawn without a supporting redesignation. Applying the Commission’s restricted settlement-review framework, he nevertheless approved a total penalty of $511 instead of $1,365.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 77.1606(c), 77.403-1(g), 77.1710(i), and 77.403-1
• Outcome: The railing citation was modified and reduced to $215, the seat-belt citation remained at $296, and the $511 settlement was approved.
• Key point: The Judge criticized the factual basis and claimed authority for the S&S withdrawal but approved the settlement under controlling Commission precedent.

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

TELEPHONE: 202-434-9933 / Fax 202-434-9949

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SECRETARY OF LABOR MINE SAFETY AND HEALTH ADMINISTRATION (MSHA), Petitioner
v.
APPALACHIAN RESOURCE WEST VIRGINIA, LLC, Respondent |
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CIVIL PENALTY PROCEEDING
Docket No. WEVA 2022-0554 AC No. 46-08626-560349
Mine: Tug Fork Preparation Plant
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DECISION
APPROVING SETTLEMENT

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 the Motion to Approve Settlement for the citations and
orders involved in this matter. The parties move to modify one citation, as
stated below. The total penalty would be reduced from the original assessed
amount of $1,365.00 to $511.00. This represents a 63%
reduction in the overall penalty for this docket.

Citation No. 9566748 was regularly
assessed at $1,069.00. It involved a now-admitted violation of 30 C.F.R. §
77.1606(c). That standard pertains to loading and haulage equipment and its
inspection and maintenance. The cited subsection (c) provides that “[e]quipment
defects affecting safety shall be corrected before the equipment is used.”

The citation described the condition as follows: “The Co. No. 541, 733D
Caterpillar haul truck, is not being maintained free of defects affecting
safety, as required. When checked, the offside railing at
the top of the ladder is broke free in all but one spot, allowing the railing
to move back and forth. This truck is operated 5 days per week, 12 hours per
day. Left uncorrected, this condition, will expose the miner(s) to hazards
associ[iat]ed with falling from elevated heights, causing permanently disabling
injury[] to the miner(s). From the ground to the landing where the railing is
broke free is approx. 8-9 feet. The operator immediately removed the truck
from service until repairs are made.”

Petit. for civil penalty at 10.

Evaluating the violation, the inspector marked the injury as reasonably
likely to occur with permanently disabling injuries. Accordingly, the inspector
listed the violation as “significant and substantial.” Negligence was marked as
‘low.’ Id.

The violation was terminated the same day with the inspector stating that
“[a] qualified person has replaced/corrected the condition, the railing now
appears to be secure to the machine.” Id.

In support of the 80%
(eighty percent) reduction in the penalty, resulting in a penalty of
$215.00, from the original regular assessment of $1,069.00, the Secretary
offers the following:

The Respondent contends that the gravity was over-evaluated and should

not have been issued as “reasonably
likely” and “S&S”. Respondent would argue at
hearing that the condition cited is not a discrete safety hazard to miners. Respondent
contends that the equipment operator is not routinely exposed to the off-side
railing, which is not in the access path to the operator’s cab. Additionally,
the Respondent would argue that the railing was loose, but still intact and
would still perform the necessary duties to prevent a miner from falling from
the elevated platform. The Secretary has exercised his discretion to modify the
significant and substantial designation associated with citation #9566748
and to modify the penalty per part 100.3 accordingly.

Motion at 3.

The Court
is dismayed that the Secretary has bought into the Respondent’s argument that
the hazard is unlikely to occur. Given all the attendant conditions associated
with this violation: that the offside railing at the top of the ladder was broken
free in all but one spot, allowing the railing to move back and forth and
given that the truck is operated 5 days per week, 12 hours per day and given
that a fall involved 8 to 9 feet, a height which presumptively would result
in a permanently disabling injury, the Secretary’s agreement is hard to
understand. Not one of the conditions noted by the inspector is disputed.

The Court notes that if the inspector had taken a photograph of the hazardous condition he found, the Secretary might have been foreclosed from agreeing to this de minimis penalty.

That agreement is coupled with the Secretary’s oft-claimed assertion that he can remove a significant and substantial designation with impunity. That is incorrect. In a motion, the Secretary can assert that a violation was unlikely to occur, but it is only by that redesignation that a non-significant and substantial violation may follow. As the Court has informed many times before, the cases cited by the non-attorney representative do not stand for the notion that he can independently drop a significant and substantial designation, as if by an edict.

The two cases
continually cited by the Secretary, Am. Aggregates
of Michigan, Inc., 42 FMSHRC 570, 576-79 (Aug. 2020) and Mechanicsville
Concrete, Inc., 18 FMSHRC 877, 879-80 (June 1996)) do not
support the claim that the Secretary may peremptorily delete a significant and
substantial finding. Such a modification can only occur upon determining that
at least one of the two elements of such a finding is missing: that a
reasonably likelihood of reasonably serious injury was not present.

A seemingly
impenetrable wall, as noted above, CLRs continue to assert that “[t]he
Secretary has exercised [the] discretion to modify the significant and
substantial designation associated with citation #9566748 and to modify the
penalty per part 100.3 accordingly. The Secretary may exercise that discretion
as part of a settlement. Am. Aggregates of Michigan,
Inc., 42 FMSHRC 570, 576-79 (Aug. 2020) (citing Mechanicsville
Concrete, Inc., 18 FMSHRC 877, 879-80 (June 1996)).” Motion at 3.

Mechanicsville only holds that the
judge may not essentially make a prosecutorial decision to designate a
citation as S&S in the first instance, as that is an exercise of
enforcement authority reserved for the Secretary. Thus, presented with a
citation with no significant and substantial designation, a judge may not add
that designation on his or her own.[1] Am. Aggregates simply echoes
Mechanicsville, holding “[w]hether a violation is S&S is a
matter in the first instance of prosecutorial discretion. The Mine Act,
therefore, recognizes the particular expertise of MSHA in judging whether a
violation is S&S. Indeed, if MSHA does not charge an S&S violation,
the Commission cannot make an S&S finding. Mechanicsville Concrete,
Inc., 18 FMSHRC 877, 879-80 (June 1996). Commission Judges do not have the
discretion to make such elevated finding unless it is asserted in the
first instance by MSHA.” Am. Aggregates at 576 (emphasis
added).

Make no mistake, here
both citations in this Appalachian Resource docket were designated
by the MSHA inspector as significant and substantial. Thus, clearly, Am.
Aggregates and Mechanicsville do not apply. The Court does not
criticize the CLRs for habitually inserting this claim; no doubt they do it at
the behest of attorneys for the Secretary, as the CLRs are not attorneys, and
it is unlikely that they all developed an analysis of the cases cited on their
own. That the Secretary may have this position on its wish list is not
the same thing, as Commission decisions have not, up to this point, agreed with
that claim. The Court has pointed this out several times before, but no doubt
the CLRs will continue to cite those inapposite holdings, because they are told
to do so.

The unsafe railing violation
must also be viewed in context.

Earlier on the
same day as the defective railing violation was found, the inspector found a
second, significant, violation on the same piece of equipment. The
inspector found that the equipment operator of this haul truck was not wearing
the seat belt, citing 30 C.F.R. §77.403-1(g), with its requirement that “[s]eat
belts required by § 77.1710(i) shall be worn by the operator of mobile
equipment required to be equipped with ROPS by § 77.403-1.”

As with the other violation associated with this truck, the inspector marked an injury occurrence as ‘reasonably likely’ to occur, producing lost workdays or restricted duty, although in his evaluation he stated that the “condition will cause and or contribute to an accident of a reasonably serious nature, when the driver will receive fractures and lacerations, resulting in at least lost workdays or restricted duty.” Petit at 9.

Thus, two noteworthy hazards were at play with the same truck, hazards which were not divorced from one another. Both, at least by the view of the issuing inspector, were significant and substantial. To the Court, the distinguishing feature is that the seatbelt violation only involved $296.00, while the railing violation was assessed at $1,069.00. As the Court has remarked in numerous cases, it does appear that the larger assessments are the ones most often subjected to significant penalty reductions, with the minimal penalties more often paid as assessed. Whether this frequent result is mere happenstance is unknown.

Reasonable Inquiry is not
Permitted

Despite the Court’s analyses and expressed
concerns for Citation No. 9566748, it is not permitted to make reasonable
inquiry about the contentions advanced in settlement motions. This is because,
under the Commission’s interpretation of section 110(k) of the Mine Act,
Congress only intended that the three elements as laid out in AmCoal and
Rockwell Mining, LLC, 40 FMSHRC 994 (Aug. 2018), need be considered
under the Commission’s standard for review of settlement submissions. The
settlement motion does not require more information from the Secretary.
Accordingly, per the Commission’s decisions on the scope of a judge’s review
authority of settlements, the “information” presented in this settlement motion
is sufficient for approval.

The Commission has stated that the
administrative law judges have “front line oversight” of the settlement
process and as such that it is an adjudicative function that “necessarily
involves wide discretion.” Despite those muscular words, the Commission has
clearly set forth that the Secretary is not required to offer any comment at
all as to the merits of the Respondent’s arguments.

Per
the Commission’s decisions in AmCoal and Rockwell Mining, to
approve a settlement motion there are three requirements. Meeting the first two
requirements is automatic and perfunctory.

(1) The
motion must state the penalty proposed by the Secretary.

This requirement is met in every civil penalty petition, as the petition contains the proposed penalty. The amount is rarely, if ever, an issue, and if in issue, it is resolved before the penalty petition is filed.

(2) The
amount of the penalty agreed to in settlement.

This requirement is also automatic; there could not be a settlement motion without the parties stating the penalty amount to which they have agreed.

(3) “Facts,”
as the Commission has employed that term, in support of the penalty agreed to
by the parties.

In the context of settlement motions,
“facts” have an atypical meaning.[2] In
discussing what constitute “facts” for settlements, the Commission stated
“there is no requirement that facts supporting a proposed settlement must
necessarily be submitted by the Secretary. Facts supporting a penalty reduction
in a settlement motion may be provided by any party individually or by parties
collectively.” AmCoal at 990. The only associated requirement with such
“facts” is that “there is a certification by the filing party that any
non-filing party has consented to the granting of the settlement motion.” Id.
(emphasis added).

Accordingly, the Commission
rejected the view that a respondent’s assertions of fact need to “present
legitimate questions of fact,” and further that the Secretary need not comment
yea or nay to the facts asserted by a respondent. Instead, the Commission
announced that “[f]acts alleged in a proposed settlement need not demonstrate a
‘legitimate’ disagreement that can only be resolved by a hearing.” Instead, the
Commission allows that parties may submit facts that reflect a mutual position
that the parties have agreed is acceptable to them … ” Id.

It should not come as a surprise
that, under the Commission’s AmCoal test for review of settlements, all
such motions are approved. In the rare instances where a judge has denied a
settlement motion, post-AmCoal, those decisions have met with reversals
by the Commission. Hopedale Mining, 42 FMSHRC 589 (Aug. 2020), American
Aggregates, 42 FMSHRC 570 (Aug. 2020) (Chairman Traynor and Commissioner
Jordan, dissenting).

As the motion meets the
Commission’s standard for approving settlement motions and as the Court is
duty-bound to faithfully apply the Commission’s present decisional holdings
regarding review of settlement motions according to the way the Commission has interpreted
its review responsibilities under the unique review provision set forth in
section 110(k) of the Mine Act and, applying those holdings, the Court
determines that this settlement, as with all settlement motions presented to
this Court post-AmCoal, also meets the Commission’s review criteria and
therefore the motion is to be approved as appropriate.

Typically found
in the Secretary’s motions for approval of settlement is language along the
lines that the parties seek to have the Court accept that it acknowledges
and accepts the explanation for the agreed upon settlement contained in the
parties’ settlement motion and amendments. In this instance, the
Secretary includes as proposed language that the Court has “considered the
representations and documentation submitted, f[ound] that the assessment is
reasonable and . . . conclude[d] that the proposed settlement is appropriate
under the criteria set forth in section 110(i) of the Act” Draft Order at 3. The
Court cannot subscribe to such language.[3]
Rather, the Court’s review of settlement motions is confined to comparing
the parties’ motion with the three criteria set forth by the Commission in its
decisions in The American Coal Co., 40 FMSHRC
983 (Aug. 2018) (“AmCoal”) and Rockwell Mining, LLC, 40
FMSHRC 994 (Aug. 2018).

The Court has considered the motion
in the context of comparing it with the Commission’s AmCoal decision and
finds that it meets that decision’s standard of review. Accordingly, on that
basis only, the motion to approve settlement is GRANTED, Citation No.
9566748 is MODIFIED as set forth above and Respondent Appalachian
Resource West Virginia, LLC, is ORDERED to pay the Secretary of Labor
the sum of $511.00, as opposed to the initial total proposed penalty of
$1,365.00, within 30 days of this decision.[4]

/s/
William B. Moran

William B. Moran

Administrative Law Judge

Distribution:

K. Brad Oakley, Esq., Jackson Kelly PLLC, 100 W. Main Street, Suite 700

Lexington KY 40507, [email protected]

David C. Trent, Conference & Litigation Representative, U.S. Department of Labor, MSHA

4499 Appalachian Highway, Pineville WV 24874 [email protected]

[1]
In Mechanicsville, 18 FMSHRC 877, (June 1996), the Commission held
that it agreed “with the Secretary that the judge erred in determining on his
own initiative that the violation was S&S. … [Referring to another of its
decisions the] Commission reasoned that the modification was not appropriate
because the judge added new findings to create a section 104(b)
order. … Here, the judge similarly erred by adding a new
finding and conclusion, i.e., that the violation posed a hazard to employees
that was reasonably likely to result in a reasonably serious injury and
was therefore S&S.” Id. at 879-880. (citations omitted).

[2] In
settlements, “facts” do not mean things that are
known or proved to be true, nor does the term mean something that has actual existence,
or a piece of information presented as having objective reality. Fact, Merriam-Webster
Dictionary, https://www.merriam-webster.com/dictionary/fact (accessed
Nov. 18, 2021). Accordingly, in settlements, a fact
does not mean something that is true, nor is there a requirement that a
statement of fact be verifiable.

[3] Nor does the Court
endorse, or agree with, the assertions commonly found in the Secretary’s
motions for approval of settlements in which the Secretary claims that a
final resolution of this matter in which all violations are resolved is of
significant enforcement value to the Secretary. Motion at 2 (emphasis
added). Such boilerplate claims are almost always hollow, in view of the actual
modifications and penalty reductions that makeup these motions.

[4] It is preferred that penalties
be paid electronically at Pay.Gov, a service of the U.S. Department of the
Treasury, at https://www.pay.gov/public/form/start/67564508. Alternatively, send payment
(check or money order) to:

U.S. Department of Treasury, Mine Safety and Health Administration, P.O. Box 790390, St. Louis, MO 63179-0390.

It is important to include Docket and A.C. Numbers with the payment.