Secretary of Labor v. Covol Fuels No. 3 LLC

Plain-English summary

MSHA cited Covol Fuels after a roof collapse in the primary escapeway measured about 20 feet wide, 35 feet long, and 9 feet thick. The citation treated the event as having occurred, with fatal gravity and an S&S designation, and proposed a $3,546 penalty. The parties sought to change likelihood to reasonably likely and reduce the penalty by 78 percent to $796 because no miner was present or injured and MSHA's writing handbook associated the occurred designation with an actual injury or illness. Judge William Moran rejected that reasoning because the regulated event was the roof fall itself, the standard and penalty regulation controlled over internal guidance, and likelihood must be evaluated under continued normal operations rather than the operator's good fortune that no miner was present. He also found the motion lacked agreed facts and omitted the related section 103(k) order and termination document, so settlement approval was denied.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.202(a) and 100.3(e); 30 U.S.C. § 820(k)
• Outcome: The proposed 78 percent penalty reduction and settlement were denied.
• Key point: For a roof-control standard, the relevant event for likelihood is the roof collapse, not whether a miner happened to be injured when it occurred.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

SECRETARY OF LABOR

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA),

Petitioner

v.

COVOL FUELS NO.3
LLC ,          

Respondent

CIVIL PENALTY PROCEEDING

Docket No. KENT 2022-0040

A.C. No. 15-19702-549694

Mine: Straight Creek Mine

DECISION DENYING MOTION TO APPROVE
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. The Secretary has
filed the Motion to Approve Settlement of the citation involved in this matter.
The parties move to modify the citation, as stated below. The penalty would be
reduced by 78% , from the original assessed amount of $3,546.00 to
$796.00 . As the Motion does not meet the Commission’s requirements for
approval of settlements, per its decisions in The American Coal Co. , 40
FMSHRC 983 (Aug. 2018) (“ AmCoal ”) and Rockwell Mining, LLC , 40
FMSHRC 994 (Aug. 2018), the Motion is DENIED .

Citation
Number

Proposed
Penalty

Settlement
Amount

Modification

9233080

$3,546.00

$796.00

Reduction
in the likelihood of occurrence from “ Occurred ” to “ Reasonably Likely ”

Totals

$3,546.00

$796.00

Seventy-Eight
(78%) Percent Penalty Reduction

Citation
No. 9233080 was issued on December 16, 2021 for a violation of 30 C.F.R.
§75.202(a). Titled “Protection from falls of roof, face and ribs,” the standard
specifies that “[t]he roof, face and ribs of areas where persons work or travel
shall be supported or otherwise controlled to protect persons from hazards
related to falls of the roof, face or ribs and coal or rock bursts.” 30 C.F.R.
§75.202(a).

The citation read:

The mine operator is
not fully controlling the mine roof to protect person from falls of the roof. When
checked the mine roof has collapsed between the crosscuts 20 and 21 along the#
6 entry of the primary escapeway. This roof fall is approximately 20 feet in
width and 35 feet in length and 9 feet in thickness. This citation is being
issued in conjunction with 103k order# 9233079.

Standard 75.202(a)
was cited 4 times in two years at mine 1519702 (4 to the operator, 0 to a contractor).

Pet. for a Civil
Penalty at 16.

For the gravity
of the violation, the likelihood of injury or illness was marked by the
inspector in his evaluation to have “occurred,” with the injury or illness
reasonably expected to be “fatal,” affecting one person. Id . The
violation was found to be significant and substantial. Id . Negligence
was found to be moderate. Id . A 103(k) Order, No. 9233079 ,
was not included in the record, nor was the abatement document for the
violation. The latter action to terminate was due four days after the issuance
of the citation, on December 20, 2021. Id . Both these documents are
essential for the Court to make an informed review of the Motion, per section
110(k) of the Act.

The Secretary
moves to modify the citation, changing the likelihood from “occurred” to
“reasonably likely,” supplying the following in support:

Basis of compromise:
A reduction in the likelihood of an injury or illness to occur.

There are factual disputes regarding the likelihood of an injury
producing event.

The Respondent
asserts it was unlikely for an accident to occur that would result in any
illness or injuries. The Respondent argues that no injury or illness occurred
as a result of the cited condition. The Respondent further argues that the
unplanned roof fall was in an area where miners do not normally work or travel,
that no one was working at the time the unplanned fall occurred and that page
2-3, of PH20-I-3, MSHA Citation and Order Writing Handbook, clearly states that
occurred can only be checked when an injury or illness has actually occurred.
Therefore, the Respondent concludes it was unlikely for an accident to occur
that would result in any illness or injury given the aforementioned facts. For
the purpose of settlement, the Petitioner proposes, and the Respondent accepts
a reduction in the likelihood of occurrence from “ Occurred ” to “ Reasonably Likely ” .
The parties have discussed the citation and propose a revised penalty of
$796.00, which is consistent with the penalty table found in Part 100, 30CFR.

Mot. to Approve
Settlement at 3.

Analysis

This
case presents a most unusual assertion. To begin, one must first comprehend the
enormity of the roof fall – a roof collapse in the primary escapeway which was
approximately 20 feet in width, 35 feet in length, and 9 feet in thickness. These
figures evince the enormously large roof fall. A fraction of that fall of roof
would’ve killed anyone who happened to be at that location when it occurred.

The Motion seeks to
reduce the inspector’s gravity evaluation down from “Occurred,” bypassing
“Highly Likely,” and arriving at “Reasonably Likely,” as the designation. The
Respondent presents two arguments in support of reducing the penalty by 78%
from $3,546.00 to what the Court views as a non-incentivizing penalty amount at
$796.00. One argument is that it was unlikely for an accident to occur that
would result in any illness or injuries. This contention rests upon the fact
that that the fall occurred in an area where miners do not normally work or
travel, and that no one was working at the time the unplanned fall. The second
argument is that MSHA can’t designate a violation as “Occurred” unless an
injury or illness “actually occurred.” The Motion claims there are “factual
disputes regarding the likelihood of an injury producing event,” even though
Respondent’s arguments are not factual disputes but rather disagreement as to the
legal interpretation of the facts. Neither argument supports the “Reasonably Likely”
gravity designation.

The first contention – that the fall was in an area
where miners do not normally work or travel, and that no one was working at the
time the unplanned fall, runs afoul of well-established case law that a
violation must be considered in the context of continued normal mining
operations. An evaluation of the reasonable likelihood of injury should be made
assuming continued normal mining operations. See U.S. Steel Mining Co .,
7 FMSHRC 1125, 1130 (Aug. 1985). “[T]he gravity determination requires a
predictive inquiry into whether the violation is reasonably likely to result in
a reasonably serious injury, see Secretary of Labor v. Mathies Coal Co .,
6 FMSHRC 1, 3–4 (Jan. 1984), a prediction which may assume ‘continued normal
mining operations,’ U.S. Steel Mining Co ., 6 FMSHRC at 1574.” Rex
Coal Co ., v. Sec’y of Lab., Mine Safety & Health Admin., 630 F.
App’x, 359, 363 (6th Cir. 2015). “An S&S determination must be made at the
time the citation is issued ‘without any assumptions as to abatement’ and in
the context of ‘continued normal mining operations.’ Paramont Coal Co .,
37 FMSRHC 981, 985 (May 2015).” Mach Mining, 40
FMSHRC 1, 6 (Jan. 2018).

As
to the second argument, that the Secretary may not designate a violation as
“occurred,” under these circumstances, the Respondent looks to MSHA’s Citation
and Order Writing Handbook. U.S. Dep’t of Lab., Mine Safety and Health Admin., Citation
and Order Writing Handbook , PH20-I-3 (Dec. 2020). (Handbook). It is
true that the Handbook states that “occurred” can only be checked when an
injury or illness has actually occurred. Handbook PH20-I-3 at page 2-3. Since
no injury or illness actually occurred as a result of the cited condition,
Respondent asserts that gravity box designation may not be checked. Instead,
the Secretary and Respondent agree to reclassify the gravity as “reasonably
likely” to occur.

However, this rationale doesn’t square with the requirement of the cited standard,
30 C.F.R. §75.202(a), which specifies that “[t]he roof, face and ribs of areas
where persons work or travel shall be supported or otherwise controlled to
protect persons from hazards related to falls of the roof, face or ribs and
coal or rock bursts.” Clearly, and with a staggeringly large failure, the roof in
this instance was not supported or otherwise controlled, and in that
safety-enforcing sense, the gravity occurred . The gravity of the
violation should not turn on whether the mine operator had the sheer luck of no
miner being at that location at that moment of inundation. If that were the
test, the agreement of the parties to designate the gravity as ‘reasonably
likely’ would not make sense either – no one was injured when the collapse
occurred, so following the line of reasoning regarding ‘occurred,’ it was not ‘reasonably
likely’ either and by that thinking ‘no likelihood’ should have been the
designation.

The Respondent’s unusual line of reasoning has been rejected. See, e.g .,
Clintwood Elkhorn Mining Co. , 38 FMSHRC 458, 466 (Mar. 2016) (ALJ),
upholding the inspector’s determination an injury reasonably expected to be
“fatal” and “occurred” when a miner received abrasions and bruising in a
runaway truck accident. The inspector “designated the injury as reasonably
expected to result in a fatality because this type of accident -- a runaway
truck -- could have resulted, and had resulted, in fatalities in the past.” Id .

“As a general proposition, rules of
statutory construction can be employed in the interpretation of administrative
regulations . See C. D. Sands, 1A Sutherland Statutory Construction , §
31.06, p. 362 (1972). According to 2 Am. Jur. 2d, Administrative Law, § 307
(1962), ‘rules made in the exercise of a power delegated by statute should be
construed together with the statute to make, if possible, an effectual piece of
legislation in harmony with common sense and sound reason.’” Golden R
Coal Co., 2 FMSHRC 446, 448-49 (Feb. 1980) (ALJ)

“It
is also an established canon of statutory construction that a legislature’s words
should never be given a meaning that produces a stunningly counterintuitive
result—at least if those words, read without undue straining, will bear
another, less jarring meaning.” United States v. O’Neil , 11 F.3d 292, 297 (1st
Cir. 1993) . The principle is that statutes should not be read
to produce illogical results which are at odds with the statute’s underlying
purposes. Consolidation Coal Co ., 14 FMSHRC 956, 963 (June 1992). In the
Court’s view, the construction urged by the Respondent produces such illogical
results.

Further, the MSHA Handbook on Citation and Order Writing represents
internal agency guidance and policy directives that are not binding on the
Secretary in his enforcement actions. See, e.g., Mingo Logan Coal Co .,
19 FMSHRC 246, 250 (1997), aff'd Mingo Logan Coal Co. v. Sec'y of Labor ,
133 F.3d 916, *3 (4th Cir. 1988). The standard takes precedence over the
Handbook, so in determining likelihood, the relevant event is not the injury
itself but the potentially injurious event that the standard exists to prevent,
here, a massive roof collapse.

In addition, the Handbook is in tension with the wording of 30 C.F.R.
§100.3(e), which specifies that “ Gravity is determined by the likelihood of the occurrence
of the event against which a standard is directed .” (emphasis added). The
event against which 30 C.F.R. §75.202(a) is directed – “falls of the roof, face
or ribs and coal or rock bursts,” – did occur , even though no miner was
injured by the fall. The standard takes precedence over the Handbook, so in
determining likelihood, the relevant event is not the injury itself but the
potentially injurious event that the standard exists to prevent, a roof
collapse which in this instance would clearly be fatal.

That the mine
operator should be able to have a 78% reduction in the penalty assessed resting
entirely that no one died is repugnant to the overarching principles of the
Mine Act and the Secretary’s duty to take care of the safety and health of our
Nation’s miners. Permitting Respondent to avoid the higher penalty amount for
the roof fall because no miners were actually injured also frustrates the
deterrent aims of the civil penalty system. One of Congress’ central goals for
the Mine Act’s civil penalty scheme was to ensure “effective and meaningful
compliance” by imposing penalties “of an amount which is sufficient to make it
more economical for an operator to comply with the Act’s requirements than it
is to pay the penalties assessed and continue to operate while not in
compliance.” [1] In the
Court’s view, the $796.00 hand slap does not accomplish Congress’ goal.

Beyond the
remarks above, the Motion does not meet the Commission’s test for review of
settlements because, even under its nonintuitive definition of ‘facts,’ the
motion is deficient. This is because, at bottom, the Respondent is making a
legal, not a factual, argument, about the proper evaluation of the gravity of
the violation. The first two elements of the Commission’s test for review of
settlements are always present, because without them no motion could be
presented. Those are: the amount of the penalty proposed by the Secretary, and
the amount of the penalty agreed to in settlement. Because no agreed-upon
‘facts’ have been offered, but rather only the legal argument that one cannot
designate the injury as ‘occurred’ unless there has been an injury, the Motion
is deficient.

There are other issues with the settlement motion. The citation was
issued in conjunction with a 103k order, Number 9233079. In carrying out its
responsibilities under Section 110(k) the Court should be able to view this
relevant document. In addition, the official record does not include the
termination document associated with the citation. Both documents constitute
part of the official record for this matter, and even under the Court’s limited
purview, it should be able to view these essential parts of the record. They
are to be part of the public record, not hidden from view.

Respondent’s claims about miners’ absence in the area – no
miners were working in the area at the time of the roof fall, and miners do not
typically work or travel in the area where the roof fall occurred – amount to
an ersatz “redundant safety measures” argument, rejected by federal
courts. [2] Miners
avoiding the area do not absolve Respondent of its obligation to follow all
safety standards.

The Court has considered the motion
in the context of comparing it with the Commission’s AmCoal decision and
finds that it does not meet that decision’s standard of review. Accordingly,
the motion to approve settlement is DENIED.

/s/
William B. Moran

William B. Moran

Administrative Law Judge

Distribution:

Gary W. Oliver, Conference &
Litigation Representative, U.S. Department of Labor, MSHA

3837 S. US Hwy 25E, Barbourville,
KY 40906 [email protected]

Eric S. Lewis, Covol Fuels No. 3
LLC, Box 853, Pineville, KY 40977

[email protected]

[1] S. Rep. 95-181, 41
(1977).

[2]
Federal case law is clear that redundant safety measures are not to be
considered in evaluating a hazard. For example, in Knox Creek Coal , 811
F.3d 148 (4th Cir. 2016), that Court observed:

“[i]f
mine operators could avoid S & S liability—which is the primary sanction
they fear under the Mine Act—by complying with redundant safety standards,
operators could pick and choose the standards with which they wished to
comply.”…Such a policy would make such standards “mandatory” in name only. It
is therefore unsurprising that other appellate courts have concluded that
‘[b]ecause redundant safety measures have nothing to do with the violation,
they are irrelevant to the [S & S] inquiry.’ Cumberland Coal, 717 F.3d at
1029; see also Buck Creek, 52 F.3d at 136.

Knox Creek Coal,
811 F.3d 148, 162 (4th Cir. 2016).

Regarding
this issue, in Consolidation Coal , 895 F.3d 113, (D.C. Cir. 2018), the
D.C. Circuit, referring to its decision in Cumberland Coal Resources, LP v.
Federal Mine Safety & Health Review Commission , 717 F.3d 1020 (D.C.
Cir. 2013), noted that it:

interpreted
the statutory text to focus on the “nature” of “the violation” rather than any
surrounding circumstances. More to the point, the court held that “consideration
of redundant safety measures,”—that is, “preventative measures that would have
rendered both injuries from an emergency and the occurrence of an emergency in
the first place less likely”—“is inconsistent with the language of [Section]
814(d)(1).” Id. at 1028–1029.

Id. at 118-119.