Secretary of Labor v. The Monongalia County Coal Company

Plain-English summary

The Commission had granted review of findings involving combustible belt-line accumulations and a related preshift-examination violation at Monongalia County Coal's underground mine. The parties settled by reinstating unwarrantable-failure designations on both orders while the Secretary abandoned his effort to label the accumulations violation flagrant. They agreed to retain the penalties already assessed and paid: $60,000 for the accumulations order and $22,200 for the examination order. Considering the agreement, the Judge's penalty findings, and the operator's bankruptcy, the Commission approved the settlement as fair and in the public interest.

Decision snapshot

• Cited standards: 30 C.F.R. § 75.400; 30 C.F.R. § 75.360(a)(1)
• Outcome: Both unwarrantable-failure designations were reinstated, the flagrant issue was dropped, and penalties totaling $82,200 remained in place.
• Key point: The settlement preserved serious unwarrantable-failure findings while ending the appeal over a possible flagrant designation.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004-1710

SECRETARY
OF LABOR,                               :

MINE
SAFETY AND HEALTH                      :

ADMINISTRATION
(MSHA)                         :

:        Docket Nos. WEVA 2015-0509

v.                                              
 :                   WEVA 2015-0632

:

THE
MONONGALIA COUNTY                     :

COAL
COMPANY                                           :

BEFORE:
Rajkovich, Chairman; Jordan, Young, Althen, and Traynor, Commissioners

ORDER

BY
THE COMMISSION:

These
civil penalty proceedings arise under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act” or “Act”), and involve two orders
which the Department of Labor’s Mine Safety and Health Administration issued to
what is now the Monongalia County Coal Company
(“MCCC”) . [1]
We granted the Secretary of Labor’s petition for discretionary review
challenging a Judge’s determinations that (1) belt
line accumulations, which violated 30 C.F.R. § 75.400, were not attributable to an “unwarrantable failure” to comply
with the standard (Order No. 8059209); [2] (2) those accumulations did not constitute a “flagrant
violation” under the Mine Act; [3] and
(3) a related violation of the preshift examination standard, 30 C.F.R. § 75.360(a)(1), [4] was
not the result of an “unwarrantable failure” (Order No. 8059212). 40 FMSHRC
1234 (July 2018) (ALJ).

On
August 11, 2020, the Secretary and MCCC jointly moved the Commission to approve
their agreement to settle the case. Pursuant to the agreement, both
unwarrantable failure designations would be reinstated, while the Secretary would
drop his appeal of the accumulations violation being found to not be “flagrant.”
The parties also agreed that the penalties assessed by the Judge in his
decision, which have already been paid by MCCC, would stand: $60,000 for Order
No. 8059209 and $22,200 for Order No. 8059212.

Having
considered (1) the terms of the settlement agreement; (2) the substance of the
Judge’s penalty assessments; and (3) that on October 29, 2019, MCCC entered
into bankruptcy proceedings, we conclude that the settlement agreement “is fair,
reasonable, appropriate under the facts, and protects the public interest.” Am.
Coal Co. , 38 FMSHRC 1972, 1982 (Aug. 2016). Consequently, we grant the
settlement motion. [5]

/ s/
Marco M. Rajkovich, Jr.

Marco
M. Rajkovich, Jr. ,
Chairman

/s/
Mary Lu Jordan

Mary
Lu Jordan, Commissioner

/s/
Michael G. Young

Michael
G. Young, Commissioner

/s/
William I. Althen

William
I. Althen, Commissioner

/s/
Arthur R. Traynor, III

Arthur
R. Traynor, III, Commissioner

[1]
The orders in dispute identified the operator as Consolidation Coal Company. Prior
to the date of the orders, CONSOL Energy, Inc. sold all the issued and
outstanding common stock of Consolidation Coal Company to Ohio Valley
Resources, Inc. Thereafter, the name of the mine at issue was changed from the
“Blacksville No. 2 Mine” to the “Monongalia County Coal Mine;” the Mine ID
number, 46-01968, remained the same. After the purchase, the mine operator’s
name was changed to “The Monongalia County Coal Company.”

[2]
Section 75.400 provides that “[c]oal dust, including float coal dust deposited
on rock-dusted surfaces, loose coal, and other combustible materials, shall be
cleaned up and not be permitted to accumulate in active workings, or on
diesel-powered and electric equipment therein.” The unwarrantable failure
terminology, taken from section 104(d)(1) of the Act,    30 U.S.C. § 814(d)(1),
establishes more severe sanctions for any violation that is caused by “an
unwarrantable failure of [an] operator to comply with . . . mandatory health or
safety standards.”

[3] Section 8(a) of
the Mine Improvement and New Emergency Response (“MINER”) Act enacted in 2006
amended section 110(b) of the Act to create a “flagrant” violation designation
and to provide for the assessment of an enhanced penalty as follows:

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).

[4] Section 75.360(a)(1)
provides in pertinent part that “a certified person designated by the
operator must make a preshift examination within 3 hours preceding the
beginning of any 8-hour interval during which any person is scheduled to work
or travel underground.” Belts are required to be examined either once per shift
or as part of a preshift exam for, among other things, “accumulations of
combustible materials.” See 30 C.F.R. § 75.362(a)(3)(iii) & (b).

[5]
Our grant of the motion renders moot the Secretary’s pending motion to strike
parts of the response brief MCCC filed with the Commission.