Secretary of Labor v. Pocahontas Coal Company, LLC

Plain-English summary

One citation concerning a forklift wiring schematic remained unchanged at $133. A second citation found accumulated drill dust behind primary and secondary filters on a roof bolter, with dust visibly suspended during startup and operation and potential for silicosis or coal miners' pneumoconiosis. The settlement changed that citation from reasonably likely, S&S, and moderate negligence to unlikely, non-S&S, and low negligence, reducing its penalty from $909 to $139 based on a prior-shift personal dust-monitor reading and the claim that the condition arose after the weekly examination. Judge Moran criticized reliance on a single compliant reading and a monitor as an irrelevant alternative protection, stressed cumulative dust exposure and nine recent violations of the standard, but approved the $272 total settlement under Commission precedent.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.512 and 72.630(b)
• Outcome: One citation remained unchanged; the dust-collection citation was substantially reduced, for a $272 total settlement.
• Key point: The Judge viewed the 85% dust-citation reduction as inconsistent with cumulative respiratory hazards but approved it under the governing settlement-review framework.

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 20004-1710

TELEPHONE: 202-434-9933 / Fax 202-434-9949

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SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA), Petitioner
v.

POCAHONTAS COAL COMPANY LLC,Respondent |

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CIVIL PENALTY PROCEEDING
Docket No. WEVA 2022-0489 AC No. 46-08878-557759
Mine: Affinity Mine |

DECISION
APPROVING SETTLEMENT

Before: Judge William 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 citations involved in this matter]. The parties move to modify
and reduce the assessed penalty of one citation, as stated below. The overall
penalty will be reduced from original assessed amount of $1,042.00 to
$272.00.

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9556249 |
$133.00 |
$133.00 |
Violation of 30
C.F.R. § 75.512, forklift not maintained according to wiring schematic
in service manual. Sustained as Issued. |
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9556250 |
$909.00 |
$139.00 |
Violation of 30 C.F.R. § 72.630(b), roof bolting machine’s dust collection system not maintained. Modify to “low” negligence, “unlikely” likelihood of injury or illness, and non-S&S.
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Both citations in this docket were issued as 104(a) citations, regularly assessed, and received a 10% penalty reduction for good faith.

Citation No. 9556250 was issued on May 25, 2022, for a violation of 30 C.F.R. § 72.630(b). Titled “Drill dust control at underground areas of underground mines,” the standard specifies that:

(b) Dust collectors. Dust collectors shall be maintained in permissible and operating condition. Dust collectors approved under Part 33 - Dust Collectors for Use in Connection with Rock Drilling in Coal Mines of this title or under Bureau of Mines Schedule 25B are permissible dust collectors for the purpose of this section.

30 C.F.R. § 72.630(b).

The citation read:

Standard 72.630(b) was cited 9 times in two years at mine 4608878 (9 to the operator, 0 to a contractor). Upon inspection of the #2 Section C/N# 71 roof bolting machine it was observed that the dust collection system was not being maintained in permissible and operating condition. When checked there was rock drill dust 1/16" inch deep on the off-side of the machine that had been allowed to accumulate behind the primary dust filters inside the duct work. Upon further examination rock drill dust in excess of 1/4" inch in depth was also present inside the secondary collection compartment and around the secondary filters on the off-side of the machine. This condition allowed rock drill dust to be visually suspended in the air space around the bolter both during the initial start and during operation. This violation if allowed to exist would result in miners exposure to the harmful elements present in rock drill dust and would result in permanently disabling injuries such as silicosis or coal miners pneumoconiosis.

Pet. for a Civil Penalty at 18.

For gravity, likelihood of injury
was found to be “reasonably likely,” and injury could reasonably be expected to
be “permanently disabling,” affecting 2 people. Id. The violation was
found to be significant and substantial. Id. Negligence was found to be
“moderate.” Id. The citation was terminated on May 26, 2022. As
justification for the termination, the inspector wrote: “The dust collection
system has been cleaned and is now functioning correctly.” Id at 19.

The Secretary moves to modify the citation, changing the likelihood of injury or illness to “unlikely,” removing the S&S designation, reducing the negligence to “low,” and reducing the penalty to $139.00, offering the following in support:

Order No. 9556250 shall be modified from Reasonably Likely to Unlikely, S&S to Non S&S and from Moderate Negligence to Low. The Respondent would have argued at the hearing that this citation was issued on the midnight shift when the bolting machine was not in operation and that the curtain side roof bolter operator wore a Personal Dust Monitor on the previous shift and that the whole shift exposure was just 0.152 mg/cubic meter, an incredibly low and compliant result. Therefore, the condition did not cause exposure to hazardous respirable dust. Respondent would further argue that the condition was not obvious and had come into existence following the weekly examination 6 days prior.

Taking into account the Respondent’s arguments, the facts and circumstances surrounding the violation, the available evidence, the Secretary has decided to modify the citation from Reasonably Likely to Unlikely, S&S to Non S&S and from Moderate Negligence to Low and to reduce the Penalty to $139.00 for settlement purposes. Respondent has agreed to accept the citation as modified and pay the agreed-upon penalty. No other modifications are made.

Mot. to Approve Settlement at 3.

Analysis

The Court considers the settlement for Citation No. 9556250 with antipathy. Pneumoconiosis, “Black Lung” is an insidious disease. Speaking in the past tense about the condition he found, the inspector noted:

[t]his condition ** allowed**
rock drill dust to be visually suspended in the air space around the bolter
both during the initial start and during operation. This violation if allowed
to exist would result in miners exposure to the harmful elements present in
rock drill dust and would result in permanently disabling injuries such as
silicosis or coal miners pneumoconiosis.

Petition at 18.

Each instance of potential exposure to the lung-crippling coal dust contributes to developing this respiration smothering disease. It is the cumulative effect that impairs, not a single instance. By endorsing the “unlikely” designation, MSHA does no favors to the miners it is charged with protecting. Here, the inspector found that the dust collection system on a roof bolting machine was not being maintained in permissible and operating condition and he identified two locations on the machine with this issue.

MSHA compounds this mistake of calling the
injury as ‘unlikely,’ by accepting the idea that the curtain side roof bolter
operator wore a Personal Dust Monitor on the previous shift[1]
and that the whole shift exposure was just 0.152 mg/cubic meter, an incredibly
low and compliant result. Even if true, such putative claims are not to be
considered in evaluating likelihood and the significant and substantial
designation. The federal courts of appeals have rejected the ‘alternative
safety measures’ argument raised by respondents when analyzing the significant
and substantial designation. 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).

Further 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

Nor
is the mine operator ignorant of the cited requirement, having been cited for
violating it nine (9) times in the past two years.

In the Court’s opinion,
reducing this now-admitted violation by 85%, from a regularly assessed
amount of $909.00 down to $139.00, virtually a minimum penalty, MSHA does a
disservice to the miners it is charged with protecting. Such results raise the
risk that operators may decide that a minimal fine is the better option than
compliance.

In spite of the concerns expressed
above, the Court finds that the motion meets the test for approval because under the Commission’s interpretation of section 110(k) of
the Mine Act, Congress only intended that the three elements as laid out in The
American Coal Co., 40 FMSHRC 983 (Aug. 2018) (“AmCoal”) and Rockwell
Mining, LLC, 40 FMSHRC 994 (Aug. 2018) must be shown.

In that light only, the
Court has considered the motion and finds that justification for the reduction
in the penalty has been presented. Accordingly, the motion to approve
settlement is GRANTED. Respondent Pocahontas Coal Company LLC is ORDERED
to pay the Secretary of Labor the sum of $272.00 within 30 days of this decision.[2]

/s/
William B. Moran

William B. Moran

Administrative Law Judge

Distribution:

Douglas W. Johnson, CLR, U.S. Department of Labor, MSHA, 1293 Airport Road, Beaver, WV 25813 ([email protected])

Justin Chandler, STEPTOE & JOHNSON PLLC, Chase Tower, Seventeenth Floor, P.O. Box 1588, Charleston, WV 25326 ([email protected])

[1] The operator’s
statement is also an implicit admission that the condition existed on the prior
shift and it couples this with the misguided notion that wearing a dust monitor
lessens the hazard.

[2] It is preferred
that penalties be paid 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.

It is important to include Docket and A.C. Numbers with the payment.