Secretary of Labor v. Greenbrier Minerals, LLC

Plain-English summary

This original decision approved a settlement concerning a personnel carrier with a nonfunctioning parking brake. The agreement changed the citation from reasonably likely and S&S to unlikely and non-S&S and reduced the proposed penalty from $1,069 to $535 based on the fact that the carrier's service brakes worked. Judge Moran criticized that justification because appellate decisions treat redundant safety measures as irrelevant to evaluating the cited hazard, but approved the agreement under Commission settlement precedent. The Judge issued an amended decision the following day that replaced this version and more explicitly clarified that the citation concerned the parking brake, not the service brakes.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.1725(a)
• Outcome: The citation was modified to unlikely and non-S&S, and the $535 settlement was approved.
• Subsequent action: The May 23 amended decision replaced this version and is available as weva-2023-0166-alj.
• Key point: The settlement relied on functioning service brakes even though the citation alleged a defective parking brake.

Full text (FMSHRC public release)

** **FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9933

FAX: 202-434-9949

|
SECRETARY OF LABOR ## MINE SAFETY AND HEALTHADMINISTRATION (MSHA), Petitioner
v.

GREENBRIER MINERALS, LLC,Respondent |

|
|
CIVIL PENALTY PROCEEDING
Docket No. WEVA 2023-0166 A.C. No. 46-09514-569163
Mine: Muddy Bridge
|

** DECISION APPROVING SETTLEMENT**

Before: Judge Moran

It is ORDERED that the
Conference and Litigation Representative (CLR), Ray A. Cartwright, be accepted
to represent the Secretary in accordance with the notice of limited appearance
he has filed with the penalty petition. Cyprus Emerald Resources Corporation,
16 FMSHRC 2359 (Nov. 1994).

This case is before me
upon a Petition for Assessment of a Civil Penalties filed under section 105(d)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). The
motion is brought by non-attorney representatives, known as “conference and
litigation representatives (“CLRs”). The [CLR has filed a]
motion to approve settlement of the violations involved in this matter. The
parties have moved to approve the proposed settlement as follows:

Involved in this matter is a section 104(a) citation for a now-admitted violation of 30 C.F.R. §75.1725(a). That standard, titled “Machinery and equipment; operation and maintenance,” provides at the cited subsection that “Mobile and stationary machinery and equipment shall be maintained in safe operating condition and machinery or equipment in unsafe condition shall be removed from service immediately.”

In issuing the
citation, MSHA Inspector Emory Pack found that a Mac 12 emergency ride, company
number 001, had a non-functioning parking brake. The inspector noted that the machine
is used to transport miners from the end of the track to the No. 1 section. Petition
for Civil Penalty at 17. As the inspector marked the violation as reasonably
likely to result in an injury producing lost workdays or restricted duty, he
properly designated it as significant and substantial. The negligence was listed
as moderate. Id.

That the inspector properly
so evaluated the non-functioning brake was borne out by the fact that the parking
brake was replaced. Id at 18

The Motion asserts the following in support of the modification and the 50% penalty reduction:

Respondent disputes the level
of likelihood of injury characterized by the citation. Respondent contends the ** service
brakes**
on the personnel carrier were working properly when tested.

Motion at 3 (emphasis added).

Analysis

** **The support offered is a display of
irrelevant considerations, because it is entirely composed of factors that are
not to be considered, per the clear directions from the United States Courts of
Appeals. Those Courts have
rejected the ‘alternative safety measures’ raised by the Respondent when
analyzing the significant and substantial designation. Accordingly, 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.

Such irrelevancies do not
acquire legitimacy in the context of settlements because to do so, would mean
that a lesser standard is applied. It is disconcerting that the Secretary’s
non-attorney representatives continue to advance these rejected justifications[2]
for penalty reductions, as it displays a lack of respect for the holdings of
the Courts of Appeals and Congress’ explicit direction that penalties must be
sufficient to encourage operators to comply with safety and health standards,
as opposed to noncompliance with the attendant benefit of paying greatly
reduced penalties.

Despite the above
observations, the Court is not permitted to make reasonable inquiry about
settlement motions. With that restriction, 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. The Court
must and does adhere to all Commission precedent. 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 motion
to approve settlement is GRANTED, the citation contained in this docket is
MODIFIED as set forth above, and it is ORDERED that Greenbrier Minerals, LLC
pay the Secretary of Labor the sum of $535.00 within 30 days of this
order.[3]

/s/
William B. Moran

William B. Moran

Administrative Law Judge

Distribution:

Ray
A. Cartwright, Conference & Litigation Representative, U.S. Department of
Labor, MSHA, 100 YMCA Drive, Madisonville, KY 42431 [email protected]

Lorna Waddell, Legal Counsel, DINSMORE & SHOHL LLP, 215 Don Knotts Blvd., Suite 310,

Morgantown,
WV 26501 [email protected]

[1] The citation was
for the non-functioning parking brake, not the service brake.

[2] As the CLRs are
not attorneys, the Court realizes they simply follow the orders from the Solicitor
as to the claimed justifications, even if they are without merit.

[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.

It is vital to include Docket and A.C. Numbers when remitting payments.