Secretary of Labor v. Greenbrier Minerals, LLC

Plain-English summary

MSHA issued two same-day citations after finding scratched and internally dirty windows on two Caterpillar D10R dozers working in the same coal-stockpile area. One citation, covering four deficient windows, remained at its $626 assessment; the other, covering five deficient windows, was reduced from moderate to low negligence and from $563 to $252 because the operator said the glass had previously been replaced, the condition was not reported on pre-operational checks, and management lacked knowledge. Judge Moran found those explanations implausible, emphasized the machines' size and the importance of visibility, and noted that the more heavily affected dozer received the lower penalty. He nevertheless approved the $878 settlement under Commission precedent limiting inquiry.

Decision snapshot

• Cited standard: 30 C.F.R. § 77.1605(a)
• Outcome: One citation remained unchanged; the other was reduced to low negligence, for a total settlement of $878.
• Key point: Nearly identical dozer-window violations received sharply different penalty treatment despite the reduced citation involving more deficient windows.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMISSION

Office of Administrative Law Judges

1331 Pennsylvania Avenue, N.W., Suite 520N

Washington, DC 20004

Office: (202) 434-9933 / Fax: (202) 434-9949

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SECRETARY OF LABOR MINE SAFETY AND HEALTH ADMINISTRATION (MSHA), Petitioner
v.
GREENBRIER MINERALS, LLC, Respondent |
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CIVIL PENALTY PROCEEDING
Docket No. WEVA 2023-0036 A.C. No. 46-02140-563930
Mine: Saunders Preparation Plant |

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 CLR has filed a motion to approve settlement. The originally assessed amount was $1,189.00 and the proposed settlement is for $878.00.

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9567361 |
$626.00 |
$626.00 |
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9567358 |
$563.00 |
$252.00 |
Modify to low
negligence; |
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This Motion to Approve Settlement
involves two violations of 30 C.F.R. § 77.1605(a); both were regularly
assessed, with one paid in full, and the other with a 55% reduction. The standard
pertains to loading and haulage equipment, and its requirements can aptly be
described as ‘clear as glass,’ because it requires that “[c]ab windows shall be
of safety glass or equivalent, in good condition and shall be kept
clean.” (emphasis added).

Citation
No. 9567358; the
citation with the 55% reduction in the penalty.

Here, the issuing MSHA inspector, Curtiss Vance III, diligently noted:

“[t]he following windows on
the Dl0R Caterpillar Dozer Co. No. 472 were not in good condition:

1. The left side door window was not in good condition. The window was scratched on the outside and dirty in between the outer glass and inner glass.

2. The right side door window was not in good condition. The window was scratched on the outside and dirty in between the outer glass and inner glass.

3. The front window was not in good condition. The window was scratched on the outside and dirty in between the outer glass and inner glass.

4. The rear window was not in good condition. The window was scratched on the outside and dirty in between the outer glass and inner glass.

5. The side windows were not in good condition. The window was scratched on the outside and dirty in between the outer glass and inner glass.

This dozer was being operated on the Coal Stockpile Area pushing to a underground feeder. Cab windows shall be of safety glass or equivalent, in good condition and shall be kept clean.”

Petition for Civil Penalty at 6

The Secretary requests Citation No.
9567358 be modified to Low negligence. The Respondent would argue that the
window glass in the Caterpillar Dozer Co. No. 472 had been replaced in
the past. The window glass had not been reported to be damaged on the
pre-operational checks. The mine management was not aware of the condition at
the time of the inspection. Motion at 3 (emphasis added).

Citation No 956736; the citation paid in
full.

This citation, which
was issued by the same inspector and cited the same standard, 30 C.F.R. § 77.1605(a),
differed in that it involved a different piece of equipment, but it was another
[D10R Caterpillar Dozer], No. 031. Otherwise, the
violation is virtually indistinguishable from Citation No. 9567358, described above.

The condition or practice section of the citation informed:

The following windows on the DlOR Caterpillar Dozer Co. No. 031 were not in good condition:

1. The left side door window was not in good condition. The window was scratched on the outside and dirty in between the outer glass and inner glass.

2. The right side door window was not in good condition. The window was scratched on the outside and dirty in between the outer glass and inner glass.

3. The front window was not in good condition. The window was scratched on the outside and dirty in between the outer glass and inner glass.

4. The rear window was not in good condition. The window was scratched on the outside and dirty in between the outer glass and inner glass.

This dozer is operated on the Coal Stockpile Area, pushing to a underground feeder. Cab windows shall be of safety glass or equivalent, in good condition and shall be kept clean.

Petition for civil penalty at 8.

Analysis

** To put it directly, the
justification in this motion does not add up. As *noted, these two, now-admitted,
violations are virtually indistinguishable. The two citations were issued by
the same inspector, on the same day, and within an hour of each other. Both
pieces of equipment were the same: D10R Caterpillar Dozers, and they were being
operated in the same area – the Coal Stockpile Area – and doing the same task –
pushing material to an underground feeder. *

• *

• Citation No. 9567361, the one paid
  as regularly assessed, differs from Citation No. 9567358, the one with a 55%
  penalty reduction, only in that No. 9567361 was assessed at $63.00 more. To be
  clear, the inspector evaluated both violations the same – listing the likelihood
  of injury as ‘reasonably likely,’ resulting in lost workdays or restricted
  duty, with both denoted as ‘significant and substantial,’ and the negligence as
  moderate. In fact, of the two, Citation No. 9567361, is less egregious as it listed
  four distinct window locations on the equipment that were not in good
  condition, whereas Citation No. 9567358 listed five* distinct window locations
  that were not in good condition. The difference for No. 9567361 is that the
  operator failed in compliance after the citation was issued to the point that a
  (b) order had to be issued for failing to demonstrate ‘good faith’ in achieving
  rapid compliance.

The
Secretary makes matters worse with her position that she need not disclose the
(b) order itself for the Commission to view, hiding the salient information from
the Commission, all miners, and the public. One would have anticipated that the
Secretary, whose obligation is to protect the safety and health of miners, not
mine operators, would be at forefront on this issue, insisting on disclosure
of the (b) order, not blocking it from view. That strident approach, blocking
affected persons and entities from seeing the entire record, is inimical to the
Secretary’s role. The Court would have rejected the Secretary’s motion for this
deficiency alone but for the fact that its non-disclosure stance for (b) orders
is before the Commission presently in another docket.

As
noted, compounding this unjustified basis for the more than 50% penalty reduction
in Citation No. 9567358 is that the affected dozer had “not good condition” issues
with five distinct areas: the left side door window, the right side door
window, the front window, the rear window and the side windows. And, make no
mistake about it, this dozer is a large machine, weighing 144,190 lbs, with a length
of more than 25 feet and a height at 13.5 feet.[1]
These dimensions underscore the safety importance of all windows being
maintained in good condition.

Except
for the significant fact that the five identified safety deficiencies are not
funny, the excuses offered in the motion for the large penalty reduction would
be laughable. This is so because asserting that the glass had been replaced in
the past counts for nothing in any penalty analysis. Further, the claim that
the window glass had not been reported to be damaged on the pre-operational
checks and that excuses mine management, shows only that a citation for failure
to conduct genuine pre-op checks may have been in order. Inspectors should
consider such citations when confronted with such claims. With every
window deficient, a claim of operator ignorance cannot be deemed credible. Additionally,
the idea that such excuses constitute “considerable mitigating circumstances,”
the Part 100 requirement for “low negligence,”[2]
would mean that nearly all violations could qualify under such a review
standard.

It is this Court’s view that unsupported reductions in proposed regular assessments such as this run counter to the Mine Act’s purposes. Congress expressed that penalties are to be of sufficient magnitude, i.e. “cost,” to make compliance with the safety and health standards preferable to non-compliance. Results such as these, with the citation identifying more deficiencies, involving the same bulldozer model, doing the same work at the same time, and in the same location, but costing far less, gives the appearance of an unwarranted discount in the penalty, as opposed to valid justifications for penalty reductions.

Despite the many concerns expressed, the Court is presently precluded from making reasonable inquiry when presented with settlement motions. Per the Commission’s decisions on the scope of a judge’s review authority of settlements, the “information” presented in this settlement motion is sufficient for approval.

Accordingly,
the Court has considered the Secretary’s Motion and approves it solely
on the basis of the Commission’s decisions in The American Coal Co., 40
FMSHRC 983 (Aug. 2018) and Rockwell Mining, LLC, 40 FMSHRC 994 (Aug.
2018) for the standard to be applied by Commission administrative law judges
when reviewing such settlement motions under the Commission’s interpretation of
section 110(k) of the Mine Act.

** WHEREFORE, the motion for approval of
settlement is GRANTED. Citation No. 9567358 is modified to low
negligence, with the penalty reduced to $252.00 for that violation. It is
further ORDERED that the operator pay the penalty of $878.00
within 30 days of this order.[3] Upon receipt
of payment, this case is DISMISSED**.

/s/
William B. Moran

William B. Moran

Administrative Law Judge

Distribution:

Norman C. Ridley, Conference and Litigation Representative, U.S. Department of Labor, MSHA, 178 Thorn Hill Road, Suite 100, Warrendale, PA 15086.

[email protected]

Lorna M. Waddell, DINSMORE & SHOHL LLP, 215 Don Knotts Blvd., Suite 310, Morgantown, WV 26501. [email protected]

[1] https://www.ritchiespecs.com/model/caterpillar-d10r-crawler-tractor

[2] 30 C.F.R. §100.3, and
Table X.

[3] Penalties may 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. Please include
Docket and A.C. Numbers. It is vital to include Docket and A.C. Numbers when
remitting payments.