FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9900 / FAX: 202-434-9949
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
MARFORK COAL COMPANY, LLC,
CIVIL PENALTY PROCEEDING
Docket No. WEVA 2020-0004
A.C. No. 46-09091-499508
Mine: Horse Creek Eagle
ORDER ACCEPTING APPEARANCE
DECISION APPROVING SETTLEMENT
ORDER TO MODIFY
ORDER TO PAY
Before: Judge McCarthy
This case is before the undersigned upon a Petition for the Assessment of Civil Penalty under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d).
The Secretary of Labor’s Conference and Litigation Representative (“CLR”) filed a notice of limited appearance with the penalty petition. It is ORDERED that the CLR be accepted to represent the Secretary. Cyprus Emerald Res. Corp., 16 FMSHRC 2359 (Nov. 1994).
The CLR has filed a motion to approve settlement proposing a reduction in the penalties from $29,612.00 to $24,842.00. Citation No. 9162703 remains unchanged, but the CLR justifies the reduction in penalty by stating there is a legitimate factual and legal dispute regarding gravity and negligence. The CLR has stated that Citation No. 9243753 has been vacated. The Secretary claims the unreviewable discretion to vacate a citation under RBK Constr. Inc., 15 FMSHRC 2099 (Oct. 1993). The CLR also requests that Citation No. 9167505 be modified to reduce the likelihood of injury or illness from reasonably likely to unlikely and to remove the designation of significant and substantial.
Pursuant to 29 C.F.R. § 2700.1(f) and Federal Rule of Civil Procedure 12(f), the undersigned strikes paragraph 3(B) from the Secretary’s Motion. This paragraph states definitively that the Secretary’s discretion to vacate a citation at any time—including after the proposed penalty has been contested—is unreviewable. However, section 110(k) requires that any contested penalty cannot be compromised, mitigated, or settled without the approval of the Commission.
In RBK Construction, the Commission relied on the Supreme Court’s ruling in Cuyahoga Valley Ry. Co. v. United Transport Union, 474 U.S. 3, 7-8 (1985), and ruled that the Secretary has the unreviewable discretion to vacate citations. However, Cuyahoga Valley concerns the Occupation and Safety Health Act, a law that lacks any requirements similar to those in section 110(k). See generally 29 U.S.C. § 651 et seq. Furthermore, although the Commission in RBK Construction summarized the Secretary’s argument that section 110(k) only applies to settlements of penalties and not to vacations of citations or orders, the Commission never addressed that argument or provided any basis for a ruling that the reduction of a contested proposed penalty to zero does not qualify as compromising, mitigating, or settling a contested proposed penalty under section 110(k).
Additionally, the Commission did not explain in RBK Construction how—if the Secretary has the unreviewable discretion to eliminate proposed penalties through vacating citations and orders—the Commission can uphold the intent of Congress that section 110(k) act to “assure that the abuses involved in the unwarranted lowering of penalties as a result of off-the-record negotiations are avoided” and “that the Commission and the Courts will assure the public interest is adequately protected before any reduction in penalties.” The American Coal Co., 38 FMSHRC 1972, 1976 (Aug. 2016) (quoting Legislative History of the Federal Mine Safety and Health Act of 1977, at 632 (1978)) (emphasis removed). It would appear that the unreviewable discretion to eliminate citations, orders, and entire proposed penalties holds the potential to hide the very abuses Congress intended the Mine Act to address.
Given the requirements in section 110(k) and the fact that the Commission did not fully address them in RBK Construction, the undersigned considers this case law questionable and will not rely on it to evaluate this Motion.
Nonetheless, the undersigned considered the enforcement value of the settlement as a whole when evaluating the Secretary’s vacation of Citation No. 9243753.
The undersigned considered, absent the paragraph struck above, the representations and documentation submitted in this case, and the undersigned concludes that the proffered settlement is fair, reasonable, appropriate under the facts, and protects the public interest under The American Coal Co., 38 FMSHRC at 1976, and is appropriate under the criteria set forth in section 110(i) of the Act. The settlement amounts are as follows:
WHEREFORE, the motion for approval of settlement is GRANTED.
It is ORDERED that Citation No. 9167505 be MODIFIED to reduce the likelihood of injury or illness from reasonably likely to unlikely and to remove the designation of significant and substantial.
It is further ORDERED that the operator pay a total penalty of $24,842.00 within thirty days of this order.
/s/ Thomas P. McCarthy
Thomas P. McCarthy
Administrative Law Judge
Elmer J. Blair, II
U.S. Department of Labor
100 Bluestone Road
Mt. Hope, WV 25880
Eric L. Silkwood
Marfork Coal Company, Inc.
300 Running Right Way
P.O. Box 261
Julian, WV 25529
 Payment should be sent to: Mine Safety & Health Administration, U.S. Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.