Secretary of Labor v. The Monongalia County Coal Co., successor to Consolidation Coal Co.

Plain-English summary

The Secretary cited Monongalia County Coal for three combustible-material accumulation violations and two inadequate belt-examination violations across three dockets. The accumulation citations had also been identified as possible predicates for a repeated flagrant theory in related litigation. The parties settled after the judge lifted a long stay and scheduled the cases for hearing. Two unwarrantable-failure examination orders were converted to section 104(a) citations, and penalties for all five violations were reduced. Judge Jerold Feldman approved a total penalty of $40,500 instead of the proposed $120,100.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.400
• Outcome: Five violations were settled, two orders were converted to section 104(a) citations, and total penalties were reduced to $40,500.
• Key point: The settlement removed unwarrantable-failure treatment from the belt-examination violations and substantially reduced penalties while resolving the related accumulation cases.

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

SECRETARY OF LABOR

MINE SAFETY AND HEALTH   

ADMINISTRATION (MSHA),

Petitioner,

v.

THE MONONGALIA COUNTY COAL COMPANY, successor to
CONSOLIDATION COAL COMPANY,

Respondent.

CIVIL PENALTY PROCEEDINGS

Docket No. WEVA 2015-0074

A.C. No. 46-01968-361667

Docket No. WEVA 2015-0425

A.C. No. 46-01968-371547

Docket No. WEVA 2015-0473

A.C. No. 46-01968-373553

Mine: Monongalia County Mine

DECISION
APPROVING SETTLEMENT

Before:            Judge Feldman           

The captioned civil penalty
proceedings are before me based upon Petitions for Assessment of Civil Penalty
filed by the Secretary of Labor (“the Secretary”) pursuant to section 105(d) of
the Federal Mine Safety and Health Act of 1977, as amended by the Mine
Improvement and New Emergency Response Act of 2006 (“Act,” “Mine Act,” or “New
Miner Act”), 30 U.S.C. § 815(d), against the Respondent, Monongalia County
Coal Company (“Monongalia”). The captioned proceedings concern citations/orders
issued for alleged violations of the Secretary’s mandatory safety standard in
30 C.F.R. § 75.400 that prohibits mine operators from allowing combustible
materials to accumulate in active workings. The Secretary had sought to rely on
these alleged violations of section 75.400 as predicates to demonstrate a

“repeated” flagrant violation under a “broad” analysis. These matters had been
scheduled for hearing on September 10, 2019 in the vicinity of Morgantown, West
Virginia. The Secretary has now filed a joint motion to approve settlement.

The flagrant provisions of section
110(b)(2) of the Mine Act provide:

Violations under this section that
are deemed to be flagrant may be assessed a civil penalty of not more than
$220,000. For purposes of the preceding sentence, the term “flagrant” with
respect to a violation means a reckless or repeated failure to make
reasonable efforts to eliminate a known violation of a mandatory health or
safety standard that substantially and proximately caused, or reasonably could
have been expected to cause, death or serious bodily injury.

30 U.S.C. § 820(b)(2) (emphasis added).

As previously explained by me in a
related matter:

In  American Coal Company ,
the Commission crafted two interpretations of the “repeated” language in
section 110(b)(2), one “narrow” and one “broad.”  American Coal
Co.,  38 FMSHRC 2062 (Aug. 2016). Under the “narrow” interpretation, a
violation can be designated as flagrant if the duration of the violation,
without regard to a history of violations, is sufficient to warrant a
“repeated” designation.  Id.  at 2065. Thus, the Commission's
“narrow” interpretation of the flagrant provisions of the Act concerns a
discrete ongoing violation.  Id.  In contrast, the Commission
articulated that its “broad” approach involves a recurrent-type violation
analysis, i.e., analysis of several discrete yet similar violations.  Id.  This
approach allows for a “repeated” flagrant violation based on a relevant history
of similar violations .

Secretary of Labor v. Monongalia County Coal Co., 40
FMSHRC 1234, 1235 (July 2018) (ALJ) (“ Monongalia ”).

As noted above, the captioned
proceedings concern accumulation violations that the Secretary alleges are
predicates under a “broad” analysis to support the Secretary’s alleged
“repeated” flagrant” accumulation violation of section 75.400, cited in Order
No. 8059209 in Docket No. WEVA 2015-0632. Id . The captioned matters were
consolidated with Monongalia and stayed on May 12, 2016, pending a final
decision in Secretary of Labor v. Oak Grove Resources , 38 FMSHRC 957
(May 2016) (ALJ) (“ Oak Grove ”). The repeated flagrant designation in Oak
Grove was subsequently deleted by an interlocutory order on June 1, 2015. See
Oak Grove , 38 FMSHRC 957, 960; Order Deleting Flagrant Designation, 37
FMSHRC 1312 (ALJ). When neither the interlocutory order nor the decision after
hearing was appealed, Oak Grove became final. Consequently, the stay in Monongalia
was lifted on June 14, 2016. Severance Order and Prehearing Order, 38 FMSHRC
1573 (ALJ). However, the stay of the captioned predicated proceedings remained
in effect. Id.

A hearing in Monongalia was
conducted in March 2017. The post-hearing decision found that the violation was
“repeated,” based on a narrow analysis given the discrete nature of the accumulation
violation with regard to its extensiveness and its repeated references in
onshift examination books. However, the flagrant designation in Monongalia
was deleted because the evidence failed to establish that the cited accumulations
could be reasonably expected to proximately cause serious bodily injury or
death as contemplated by the flagrant provisions of section 110(b)(2) of the
Act. 40 FMSHRC at 1257. The Secretary’s appeal of Monongalia is
currently before the Commission. Unpublished Direction for Review (Sept. 6
2018).

Following the initial decision on
the merits in Monongalia , conference calls were conducted on October 2,
and December 4, 2018 to determine if the stay of the captioned proceedings
should be lifted. The parties expressed their desire to continue the stay
pending the resolution of the Monongalia appeal. The Secretary filed a
motion in support of the continuation of the stay on November 6, 2018, and a
supplemental brief in support of the stay on January 16, 2019.

Given its unopposed nature, a
ruling on the parties’ request to continue the stay had been held in abeyance. However,
on May 22, 2019, I denied the Secretary’s Motion to Continue the Stay in the
captioned proceedings, finding no basis for further delaying the disposition of
the 104(d) orders that are the subjects of the captioned matters. The stay was
lifted, as the finding of a “repeated” violation based on a “narrow” analysis
mooted the Secretary’s reliance on predicates to support a “broad” analysis.

Despite the fact that the cited
accumulation violations in 104(d) citation/order Nos. 8052882, 8052909, and
8059200 are indicative of moderately low gravity in that the violations pose
hazards that are reasonably expected to result in injuries requiring no more than
lost workdays or restricted duty, the Secretary has alleged that the subject
predicate violations satisfy the requirements for a flagrant violation. Monongalia ,
40 FMSHRC at 1258 n.14. As noted below, the parties now agree to settlement
terms that reduce the initial total civil penalty from $120,100.00 to
$40,500.00. The reduction in civil penalty is based on modifying the type of
action from 104(d) Order Nos. Nos. 8052910 and 8059203 to 104(a) citations to
reflect that the cited inadequate belt examinations were not attributable to
unwarrantable failures, and to reduce the penalties for all five alleged
violations. The reduction in proposed penalty is further supported by the
Secretary’s apparent acknowledgment of the low to moderate gravity with respect
to the accumulation violations specified in citation/order Nos. 8052882,
8052909, and 8059200. The settlement amounts are:

Citation/Order
Number

Proposed Penalty

Settlement
Amount

WEVA 2015-0074

8052882

$30,200.00

$9,300.00

Subtotal:

$30,200.00

$9,300.00

WEVA 2015-0425

8052909

$35,500.00

$10,400.00

8052910

$12,900.00

$5,200.00

Subtotal:

$48,400.00

$15,600.00

WEVA
2015-0473

8059200

$27,900.00

$10,400.00

8059203

$13,600.00

$5,200.00

Subtotal:

$41,500.00

$15,600.00

TOTAL:

$120,100.00

$40,500.00

ORDER

I have consid­ered the repre­sen­ta­tions
and docu­men­tation submit­ted in this case, and I conclude that the prof­fered
settle­ment is appropriate under the criteria set forth in section 110(i) of
the Act. WHEREFORE , the motion for approval of settlement IS GRANTED .
IT IS ORDERED that Order Nos. 8052910 and 8059203 are modified to 104(a)
citations. It is FURTHER ORDERED that the operator pay a penalty of $40,500.00
within 30 days of this order. [1] This case IS
DISMISSED upon timely receipt of the civil penalty. In view of the
above, it is ORDERED that the previously scheduled hearing is cancelled.

/s/
Jerold Feldman

Jerold Feldman

Administrative
Law Judge

Distribution:

Bertha M. Astorga, U.S. Department of Labor, Office of the
Regional Solicitor, The Curtis Center, Suite 630 East, 170 S. Independence Mall
West, Philadelphia, PA 19106 [email protected]

Artemis D. Vamianakis, Fabian VanCott, 215 South State
Street Suite 1200, Salt Lake City, Utah 84111 [email protected]

Jason W. Hardin, Fabian VanCott, 215 South State Street
Suite 1200, Salt Lake City, Utah 84111 [email protected]

/adm

1 Payment should
be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR,
PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 63179-0390. Please include the
Docket No. and A.C. No. noted in the above Caption on the payment check. Pay
online: www.pay.gov