Secretary of Labor v. GMS Mine Repair

Plain-English summary

GMS Mine Repair accepted five citations and their gravity and negligence findings but disputed how MSHA calculated the contractor's violation history for penalty purposes. MSHA counted citations and orders that became final during the preceding 15 months, even if they had been issued earlier, while GMS argued that both issuance and finality had to occur within that period. Judge John Kent Lewis found the regulation ambiguous but held that MSHA's interpretation was reasonable and supported by the rule's preamble and program manual. He also concluded that GMS's reading could encourage operators to contest violations until they aged out of the history calculation. The Secretary received summary decision, GMS's motion was denied, and the company was ordered to pay the proposed $7,331 rather than the $3,268 produced by its method.

Decision snapshot

• Cited authority: 30 C.F.R. § 100.3(c); 30 U.S.C. §§ 820(a)(1) and 820(i)
• Outcome: The Secretary's summary-decision motion was granted and the full $7,331 penalty was ordered.
• Key point: For MSHA's 15-month history calculation, the date a prior violation became final controlled even when the violation was issued earlier.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE
LAW JUDGES

7 PARKWAY CENTER, SUITE
290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE: 412-920-7240
/ FAX: 412-928-8689

SECRETARY OF LABOR

MINE SAFETY AND HEALTH       

ADMINISTRATION (MSHA),

Petitioner,

v.

GMS MINE REPAIR,

Respondent.

CIVIL PENALTY PROCEEDING

Docket No. WEVA 2021-0431

A.C. No. 46-09029-537541 MVK

Mine: Mountaineer II Mine

ORDER DENYING
RESPONDENT’S MOTION FOR SUMMARY DECISION

ORDER GRANTING
SECRETARY’S MOTION FOR SUMMARY DECISION

ORDER TO PAY

Before: Judge Lewis

On November 19, 2021, The Secretary of Labor
(“Secretary”) and GMS Mine Repair (“Respondent”) filed with the undersigned
cross-motions for Summary Decision in Docket No. WEVA 2021-0431. The Respondent
filed its Reply Brief on November 23, 2021, and the Secretary filed its Reply
Brief on December 10, 2021. The sole issue in question concerns the method of
calculating an operator’s violation history for purposes of proposing a penalty
amount, and whether citations/orders that were issued prior to the 15-month
period preceding the citation/order, but became final within the 15-month
period, may be included in the operator’s violation history.

Undisputed Facts

The parties submitted the following joint
stipulations:

1. The
   Administrative Law Judge and the Federal Mine Safety and Health Review
   Commission have jurisdiction to hear and decide this civil penalty proceeding pursuant
   to Section 105 of the Federal Mine Safety and Health Act of 1977.

2. GMS Mine
   Repair is an operator under Section 3(d) of the Act.

3. Operations
   of GMS Mine Repair are subject to the jurisdiction of the Act.

4. GMS Mine
   Repair is a contractor who performs services at various mines.

5. Pursuant
   to contract with Mingo Logan Coal, LLC, the operator of the Mountaineer II
   Mine, GMS Mine Repair was performing services at the mine on April 20 and 27,
   2021 when the citations at issue in this proceeding were issued.

6. MSHA
   Inspectors Andrew Bell and Paul Fought were acting in their official capacity
   and as authorized representatives of the Secretary of Labor when each of the
   citations at issue in this proceeding were issued.

7. The total
   proposed penalty amounts for the five citations at issue in this matter have
   been proposed by MSHA pursuant to 30 U.S.C. Section 820(a) of the Act and 30
   CFR Part 100.3.

8. Payment of
   the total proposed penalty amount, $7,331, for the five citations at issue in this matter would not affect
   the ability of GMS Mine Repair to remain in business.

9. Copies of the citations at issue
   in this matter, along with all continuation forms and modifications, were
   served on GMS Mine Repair or its agent as required by the Act.

10. The copies of the five citations that were included
    with the Secretary’s penalty petition, attached as part of Exhibit A, are
    accurate and authentic copies of those citations, with all modifications and
    abatements, and may be admitted into the record in this matter.

11. The violations cited in each of the citations at
    issue in this matter were abated in good faith and were subject to a 10%
    penalty reduction.

12. The Respondent agrees to accept all five citations
    at issue in this docket as issued, including any findings of gravity and
    negligence.

13. The only issues being contested by Respondent in
    this proceeding are the method of calculating the proposed penalty amounts used
    by the Secretary and the total amount of the proposed penalties.

14. The Respondent agrees that the penalty point
    computations shown on Exhibit A are correct except for the number of points
    assigned for history of violations in the column “VPID Pts.”

15. “VPID” refers to violations per inspection day.

16. For a contractor, such as Respondent, the overall
    history of violations points is calculated based upon the total number of
    citations and orders issued to the contractor at all mines at which it operates
    which is different from a mine operator which only considers citations/orders
    issued at a particular mine.

17. In assessing the penalty points for the VPID
    criteria MSHA considers all citations or orders that became final during the
    15-month period immediately preceding the issuance of the citation or order
    being assessed.

18. For the four citations in this case that were issued
    on April 20, 2021, the relevant time period for determining the Respondent’s
    history of violations and the amount of penalty points was January 20, 2020
    through April 19, 2021.

19. For the remaining citation in this case that was
    issued on April 27, 2021, the relevant time period for determining the
    Respondent’s history of violations and the amount of penalty points was January
    27, 2020 through April 26, 2021.

20. The dispute in this case is over which citations and
    orders are to be included in determining the Respondent’s history of
    violations.

21. Under the Secretary’s approach, all citations and
    orders that became final during the relevant 15-month period are included in
    the determination of an operator’s violation history.

22. The Respondent argues that only citations and orders
    that were both issued during the relevant 15-month period and became final
    during that period should be included in the determination of the Respondent’s
    violation history.

23. If the Secretary’s approach is ultimately upheld,
    the penalty points for the VPID criterion is correct and the penalty amounts
    are correct as shown on Exhibit A.

24. Under the Respondent’s approach to calculating the
    history of violations criterion for each of the citations at issue in this
    proceeding, five previous citations would be considered which corresponds to 0
    penalty points.

25. Under the Respondent’s approach to calculating the
    history of violations criterion for each of the citations in this docket, with
    0 penalty points for history of violations, the following penalty amounts would
    be applicable per Part 100, 100.3:

Citation           Total Points     Penalty
(including good faith reduction)

9298012
         86                    $1,006

9298012
         86                    $1,006

9298015
         46                    $125

9298016
         46                    $125

9293663
         86                    $1,006

Total
                                       $3,268

26. Regardless of the administrative
    law judge’s decision addressing this dispute, both parties reserve the right to
    appeal any decision to the Commission.

Secretary’s
Motion for Summary Decision, 3-6.

Summary Decision Standard

The Court may grant summary
decision where the “entire record…shows: (1) That there is no genuine issue as
to any material fact; and (2) That the moving party is entitled to summary
decision as a matter of law.” 29 C.F.R. § 2700.67(b); see also UMWA, Local
2368 v. Jim Walter Res., Inc ., 24 FMSHRC 797, 799 (July 2002); Energy
West Mining , 17 FMSHRC 1313, 1316 (Aug. 1995) ( citing Celotex Corp. v.
Catrett , 477 U.S. 317, 327 (1986), which interpreted Fed.R.Civ.P. 56). The
Commission has analogized its Rule 67 to Federal Rule of Civil Procedure 56,
which authorizes summary judgments upon a proper showing of a lack of a
genuine, triable issue of material fact. Hanson Aggregates New York, Inc. ,
29 FMSHRC 4, 9 (Jan. 2007). A material fact is “a fact that is significant or
essential to the issue or matter at hand.” Black's Law Dictionary (9th
ed. 2009, fact ). “There is a genuine issue of material fact if the
nonmoving party has produced evidence such that a reasonable factfinder could
return a verdict in its favor.” Greenberg v. Bellsouth Telecommunications,
Inc ., 498 F.3d 1258, 1263 (11th Cir. 2007) (citation omitted). The court
must evaluate the evidence “in the light most favorable to … the party opposing
the motion.” Hanson Aggregates , 29 FMSHRC at 9. Any inferences drawn “from
the underlying facts contained in [the] materials [supporting the motion] must
be viewed in the light most favorable to the party opposing the motion.” Id.
Though the moving party bears the initial burden of informing the court of the
basis for its motion, it is not required to negate the nonmoving party’s
claims. Celotex , 477 U.S. at 323. “When the moving party has carried its
burden under Rule 56(c), its opponent must do more than simply show that there
is some metaphysical doubt as to the material facts.... Where the record taken
as a whole could not lead a rational trier of fact to find for the nonmoving
party, there is no ‘genuine issue for trial.’” Scott v. Harris , 550 U.S.
372, 380 (2007) (citation omitted).

Analysis

Section
110 of the Mine Act, in relevant part, provides:

(a) The operator of a coal or
other mine in which a violation occurs of a mandatory health or safety standard
or who violates any other provision of this Act, shall be assessed a civil
penalty by the Secretary which penalty shall not be more than $10,000
[currently $73,901] for each such violation.

(i) The Commission shall have
authority to assess all civil penalties provided in this Act. In assessing
civil monetary penalties, the Commission shall consider the operator's history
of previous violations, the appropriateness of such penalty to the size of the business
of the operator charged, whether the operator was negligent, the effect on the operator's
ability to continue in business, the gravity of the violation, and the
demonstrated good faith of the person charged in attempting to achieve rapid
compliance after notification of a violation. In proposing civil penalties
under this Act, the Secretary may rely upon a summary review of the information
available to him and shall not be required to make findings of fact concerning
the above factors.

30
USC § 820(a)(1)(i).

The
Secretary has promulgated regulations, which implement the statutory
requirements contained in Section 110 of the Mine Act, which state in relevant
part:

History of previous violations . An operator's history of
previous violations is based on both the total number of violations and the
number of repeat violations of the same citable provision of a standard in a preceding
15-month period. Only assessed violations that have been paid or finally
adjudicated, or have become final orders of the Commission will be included in
determining an operator's history. The repeat aspect of the history criterion
in paragraph (c)(2) of this section applies only after an operator has received
10 violations or an independent contractor operator has received 6 violations.

(1) Total number of violations.
For mine operators, penalty points are assigned on the basis of the number of
violations per inspection day (VPID)(Table VI). Penalty points are not assigned
for mines with fewer than 10 violations in the specified history period. For
independent contractors, penalty points are assigned on the basis of the total
number of violations at all mines (Table VII). This aspect of the history
criterion accounts for a maximum of 25 penalty points.

30 CFR §100.3(c).

The dispute in this case concerns what precisely
gets counted as the operator’s violation history in the 15-month period. There
is no disagreement that citations and orders that have become final in the
15-month period are included. However, the Respondent argues that in order to
count towards the operator’s history, the violation must have both occurred and
been paid, adjudicated, or have become a
final order of the Commission during the 15-month period. The Secretary argues
that all citations and orders that have become final in the 15-month period are
counted, regardless of when they were issued.

On its face, the regulation is ambiguous and can
be read to support either party’s position. Based on the language of the
regulation, it is unclear if the second sentence is intended to limit the
violations mentioned in the first sentence to those that were issued and
finalized in the preceding 15-month period, or if it is intended to clarify
that the 15-month period is only in reference to the finalization date. Both
competing interpretations are reasonable.

MSHA is entitled to deference of an MSHA
regulation as long as its interpretation is not “plainly erroneous or
inconsistent with the regulation.” MSHA v. Spartan Mining Co. , 415 F.3d
82, 84 (D.C. Cir. 2005)(quoting  Thomas Jefferson University v. Shalala,  512
U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994));  see Secretary
of Labor v. Excel Mining, LLC,  334 F.3d 1, 6 (D.C.Cir.2003). “In
fact, deference is appropriate when the agency advances a permissible
interpretation even if that interpretation diverges from what a first-time
reader of the regulation would conclude is the best interpretation of
the regulation.” MSHA v. Hecla Ltd ., 38 FMSHRC 2117, 2122 (Aug.
2016).

In support of its interpretation, the Secretary
submits language from the Preamble to the Final Rule, as well as MSHA’s Program
Policy Manual. Courts have held that agency interpretations that lack the force
of law, such as those in opinion letters and policy manuals, are not entitled
to Chevron-style deference when used to interpret ambiguous statutes, but do
receive deference under  Auer  when interpreting ambiguous
regulations. See Christensen v. Harris Cnty , 529 U.S. 576, 587
(2000). In response to some commenters’ concerns about the changes, the Final
Rule states, “As each penalty contest becomes final, however, the violation will
be included in an operator's history as of the date it becomes final.” Secy.
Mot. , Exhibit B, at 13604. MSHA’s Program Policy Manual states that “Overall
history is based on the number of citations/orders issued to the mine operator
at the applicable mine that became final orders of the Federal Mine Safety and
Health Review Commission (Commission) in the 15 months preceding the occurrence
date of the violation being assessed.” Sec’y Mot ., Exhibit C.

Various passages of the Preamble also support
the Respondent’s argument. See Resp. Mot. at 4. In response to some
commenters’ concerns about the Final Rule shortening the relevant time-period
from 24 to 15 months, MSHA replied that the agency determined that it took
approximately three months for a penalty assessment to become final, so the
15-month period would provide the agency with a full year of data. Secy.
Mot. , Exhibit B, at 13604. Furthermore, the agency justified the shortening
of the time-period by stating that it would provide the agency with “a more recent
compliance history” and that “MSHA believes that operators who violate the Mine
Act and MSHA's health and safety standards and regulations should receive
penalties for those violations as close as practicable to the time the
violation occurs in order to provide a more appropriate incentive for changing
compliance behavior.” Id. However, it is not for this Court to determine
which interpretation is the most reasonable. The Supreme Court has held that “it
is axiomatic that the Secretary's interpretation need not be the best or most
natural one by grammatical or other standards. Rather, the Secretary's view
need be only reasonable to warrant deference.” Pauley v. BethEnergy Mines,
Inc. , 501 U.S. 680, 702 (1991)(citations omitted).

Furthermore,
Respondent’s interpretation of the regulation would likely lead to an absurd
application of the statutory provision in the Mine Act concerning an operator’s
history of previous violations. Section 110(i) of the Act makes clear
Congress’s intent that an operator’s history of previous violations is one of
the criteria that must be considered in assessing a penalty. 30 USC 820(a)(1)(i). However,
under the Respondent’s interpretation of the regulation, most (if not all)
violations would not be considered in the penalty assessment. This is due to
the fact that when an operator contests a citation or order, it rarely becomes
final within 15 months. See Secy Mot. at 13-16. Respondent’s
interpretation would likely lead to a perverse incentive for operators to
simply contest every citation and order until the expiration of 15 months as a
way of lowering assessed penalties by placing most previous violations out of
the realm of consideration. This framework would wholly negate the clear
congressional mandate that the operator’s history of previous violations be
considered in assessing penalties.

WHEREFORE , the Secretary’s
Motion for Summary Decision is GRANTED and the Respondent’s Motion for
Summary Decision is DENIED . Furthermore, Respondent GMS Mine Repair is ORDERED
to pay the Secretary of Labor the sum of $7,331.00 within 30 days of this
order. [1]

/s/
John Kent Lewis

John
Kent Lewis

Administrative
Law Judge

Distribution: First Class Mail and e-mail

Robert S. Wilson, Esq., U.S. Department of Labor, Office of
the Regional Solicitor, 201 12 th Street South, Arlington, VA 22202; [email protected]

Andrew J. Ellis, Esq., 224 Moyers Road, Bruceton Mills, WV
26525; [email protected]

[1]
Please pay penalties 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. Please include Docket and A.C. Numbers.