Westmoreland Coal Company

Plain-English summary

Westmoreland Coal Company was assessed a civil penalty for violating the mandatory roof-control standard at 30 C.F.R. § 75.202. The ALJ initially assessed $8,000 after finding unwarrantable failure and gross negligence, but the Commission reversed those findings and remanded for reconsideration of the penalty. On remand, the judge found negligence but again assessed $8,000. The Commission held that the unchanged penalty did not reflect the lesser negligence finding, vacated the $8,000 assessment, and assessed $5,000. It also modified the enforcement order from a section 104(d)(1) order to a section 104(a) citation.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 75.202, with enforcement provisions at 30 U.S.C. § 814(a) and § 814(d)(1).
• Outcome: The $8,000 penalty was vacated and replaced with a $5,000 penalty, and the section 104(d)(1) order was modified to a section 104(a) citation.
• Key point: A penalty must reflect the judge's modified negligence finding and the other statutory penalty criteria.

Full text (FMSHRC public release)

CCASE:
MSHA V. WESTMORELAND COAL
DDATE:
19860418
TTEXT:

             FMSHRC-WDC
           April 18, 1986

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

  v.                                  Docket No. WEVA 82-152-R
                                                 WEVA 82-369

WESTMORELAND COAL COMPANY

BEFORE: Backley, Doyle, Lastowka, and Nelson, Commissioners

                DECISION

BY THE COMMISSION:

This case arises under the Federal Mine Safety and Health Act

of 1977, 30 U.S.C. § 801 et seq. (1982) ("Mine Act"). The issue is
whether a Commission administrative law judge abused his discretion
by failing to reduce, in his decision on remand, the civil penalty
imposed for a violation of 30 C.F.R. § 75.202, a mandatory roof
control standard. For the following reasons we conclude that the
judge's penalty assessment constitutes an abuse of discretion.

The complete factual background of this case is set forth

in our decision remanding this matter to the judge. 7 FMSHRC 1338
(September 1985). It is sufficient to note here that in his initial
decision the judge found that the foreman for Westmoreland Coal
Company ("Westmoreland") had knowledge of the violative condition
but failed to correct it "through indifference or lack of reasonable
care." The judge concluded that the violation was the result of the
"unwarrantable failure of the operator to comply with the law and ...
of gross negligence." 5 FMSHRC 132, 137 (January 1983)(ALJ).
Considering this negligence finding, and the other statutory civil
penalty criteria set forth in section 110(i) of the Mine Act,
30 U.S.C. § 820(i), the judge assessed a civil penalty of $8,000.
5 FMSHRC at 137. The Commission granted Westmoreland's petition for

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review.

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On review, the Commission found that the judge's conclusion
that the violation was the result of Westmoreland's "unwarrantable
failure" not only "lack[ed] substantial support in the record" but
was "contrary to the overwhelming weight of the evidence." 7 FMSHRC
at 1342. The Commission stated that it "[could] not conclude that
the foreman's actions in allowing the work to proceed represent[ed]
the degree of aggravated conduct intended to constitute an
unwarrantable failure under the Act." The Commission also stated
that "the violation ... did not result from Westmoreland's
indifference, willful intent, or serious lack of reasonable care."
7 FMSHRC at 1342. Consequently, the Commission reversed the judge's
unwarrantable failure finding. The Commission concluded, "[b]ecause
the judge's penalty assessment rested in part on his determination
that the foreman acted with indifference and without reasonable care,
the case is remanded to the judge for reconsideration of the amount
of civil penalty in light of our decision." 7 FMSHRC at 1343.

On remand, the judge acknowledged that the case was before
him for the purpose of reconsideration of the amount of the civil
penalty in light of the Commission's finding that the violation
was not the result of Westmoreland's "indifference, willful intent,
or serious lack of reasonable care." 7 FMSHRC at 1647 (October
1985)(ALJ). The judge revised his original finding that the
violation was caused by Westmoreland's "gross negligence" and
concluded instead that Westmoreland was negligent. 7 FMSHRC at 1648.
In spite of his conclusion that the degree of Westmoreland's lack of
care was less than originally found, the judge again assessed a civil
penalty of $8,000.

A Commission judge is accorded broad discretion in assessing

civil penalties under the Mine Act. This exercise of discretion,
however, is not unbounded. The penalty must reflect proper
consideration of the statutory penalty criteria. Sellersburg Stone
Co., 5 FMSHRC 287, 290-94 (March 1983), aff'd 736 F.2d 1147 (7th Cir.
1984). When a judge's penalty assessment is at issue on review, the
Commission must determine whether the penalty is supported by
substantial evidence and whether it is consistent with the statutory
penalty criteria. Pyro Mining Co., 6 FMSHRC 2089, 2091 (September
1984). When the Commission, using this standard, has concluded that
the penalties assessed do not properly reflect the penalty criteria,
it has assessed new penalties as warranted by the record. In some
instances the resulting assessments have been higher, e.g., Pyro
Mining Co., supra, in others, the assessments have been lower, e.g.,
United States Steel Corp., 6 FMSHRC 1423 (June 1984). In all
instances, the objectives have been the same: fidelity to the record

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and effectuation of the enforcement scheme of the Act.

Here, the judge modified his prior finding of "gross negligence"

in light of our conclusion that the violation did not result from
Westmoreland's "indifference, willful intent, or serious lack of
reasonable care." His determination of an appropriate penalty to be
assessed necessarily should have been affected by his finding of a
lesser degree of negligence. Instead, the judge imposed the same
penalty without change. The judge's failure to modify the penalty in
accordance with his modified findings is unsupportable and an abuse of
discretion.

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In considering the other statutory penalty criteria, the
judge found that the violation reflected a high degree of gravity,
that Westmoreland was a large operator, that Westmoreland had a
fairly substantial history of previous violations, and that
Westmoreland's ability to continue in business would not be affected
by the penalty imposed. 5 FMSHRC at 137. These findings, which were
not disturbed on remand, are supported by substantial evidence.
Based upon these findings, and upon the finding of a lesser degree of
negligence, we conclude that a civil penalty of $5,000 is appropriate.

Finally, the violation of 30 C.F.R. § 75.202 was alleged in
an order issued under section 104(d)(1) of the Act. 30 U.S.C.
§ 814(d)(1). Westmoreland requests that we modify the section
104(d)(1) order to a citation issued under section 104(a), 30 U.S.C.
§ 814(a), because of our previous reversal of the judge's finding of
"unwarrantable failure." 7 FMSHRC at 1342. We conclude that the
requested modification is appropriate. See Consolidation Coal Co.,
4 FMSHRC 1791, 1794 (October 1980).

Accordingly, we vacate the judge's assessment of a penalty of
$8,000 for the violation of 30 C.F.R. § 75.202 and assess a civil
penalty of $5,000. Further, we modify the subject order issued under
section 104(d)(1) to a citation issued under section 104(a). 1/

              Richard V. Backley, Commissioner


              Joyce A. Doyle, Commissioner


              James A. Lastowka, Commissioner


              L. Clair Nelson, Commissioner

1/ Chairman Ford did not participate in the consideration or
disposition of this case.

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Distribution

John A. Macleod, Esq.
Crowell & Moring
1100 Connecticut Ave., NW
Washington, D.C. 20036

Barry Wisor, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203

Scott L. Messmore, Esq.
Westmoreland Coal Company
P.O. Drawer A & B
Big Stone Gap, Virginia 24219

Administrative Law Judge Gary Melick
Federal Mine Safety and Health Review Commission
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041