FMSHRC ALJ Decision

This case is before me upon a petition for assessment of a 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 of the two violations involved in this matter. The originally proposed penalty amount was $33,800.00, and the proposed settlement is for $8,225.00, a reduction in the proposed penalty amount of approximately seventy-six percent. Citation Nos. 8026170 and 8026171 remain unchanged, but the CLR states that, given the record, the citations did not warrant a special assessment. In support of this reduction, the CLR states that upon reviewing “the factual evidence surrounding the existence of the violation[s],” the Secretary was persuaded that a special assessment was not appropriate “because no egregious conduct was exhibited by the operator.” Sec’y Mot. at 2-3. The two violations at issue involved dust suppression sprays on a continuous miner. The CLR notes that (1) thirty of the dust suppression sprays on the miner were in operable condition, (2) no special assessment had ever been issued on that section under the cited standards, (3) the miner had not begun mining on the shift when pre-operational checks revealed problems with some of the sprays, and (4) all workers were re-trained on the importance of checking and maintaining all of the dust suppression parameters of the miner at all times. Id.

I have considered the representations and documentation submitted in this case. Although the magnitude of the proposed reduction in penalty is large, I note that it is consistent with the Secretary’s broad discretion in administering her Part 100 regulations. Section 100.5 of those regulations states in relevant part: “MSHA may elect to waive the regular assessment under § 100.3 if it determines that conditions warrant a special assessment.” 30 C.F.R. § 100.5(a). Here, the Secretary reconsidered a determination that the cited conditions warranted a special assessment, which was consistent with the broad discretionary authority set forth in section 100.5(a).

I also find that the settlement motion proffered by the Secretary and agreed to by Buckingham Coal Company is fully supported by the particular facts set forth in the motion. My authority to review settlement agreements filed by the Secretary and mine operators is found at section 110(k) of the Act, which provides in relevant part: “No proposed penalty which has been contested before the Commission under section 105(a) shall be compromised, mitigated, or settled except with the approval of the Commission.” 30 U.S.C. § 820(k). The Commission has held that section 110(k) “directs the Commission and its judges to protect the public interest by ensuring that all settlements of contested penalties are consistent with the Mine Act’s objectives.” Knox County Stone Co., 3 FMSHRC 2478, 2479 (Nov. 1981).

Although I am not bound by the Secretary’s exercise of her discretion under the Part 100 regulations, Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 678-679 (Apr. 1987), in the context of the instant settlement agreement, I find it appropriate to defer to the judgment of the parties in arriving at an agreement that is consistent with those regulations and the factual bases for the change in the assessment formula used by the Secretary in proposing the penalties set forth in her motion. Particularly in light of the facts provided by the Secretary, I conclude that the proffered settlement is appropriate under the criteria set forth in section 110(i) of the Act and “consistent with the Mine Act’s objectives.” Knox County, 3 FMSHRC at 2479.

Citation No.	Assessment	Settlement
8026170	$20,900.00	$5,081.00
8026171	$12,900.00	$3,144.00
	$33,800.00	$8,225.00

Accordingly, the recommended settlement is APPROVED and the operator is ORDERED TO PAY $8,225.00 within thirty days of the date of this decision.

Upon receipt of payment, this case is DISMISSED.

Barry L. Ryan, Conference & Litigation Representative, U.S. Department of Labor, MSHA, 604 Cheat Road, Morgantown, WV 26508