FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE, NW, SUITE 9500

WASHINGTON, DC 20001-2021

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

January 18, 2012

ORDER ACCEPTING APPEARANCE

DECISION APPROVING SETTLEMENT

ORDER TO MODIFY

ORDER TO PAY

Before:            Judge Lesnick

            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. A reduction in the penalty from $8,893.00 to $3,996.00 is proposed, a reduction in the proposed penalty amount of approximately fifty-five percent. In support of this reduction, the CLR states that upon reviewing the gravity of the underlying violation as set forth in Citation No. 8028750, it was more appropriate to characterize the likelihood of injury or illness as “reasonably likely” rather than “highly likely” as originally alleged in the citation. 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 Part 100 regulations found in 30 C.F.R. Under Part 100, changing the likelihood of injury or illness from “highly likely” to “reasonably likely” results in a ten point reduction in total points, specifically, from 116 to 106 points. 30 C.F.R. § 100.3(e), Table XI. After applying a ten percent reduction to reflect the operator’s “good faith,” the Part 100 formula results in a proposed penalty of $3,996, the amount agreed upon by the parties. 30 C.F.R. § 100.3(g), Table XIV.

            I also find that the proposed change in the likelihood of injury or illness from “highly likely” to “reasonably likely” is adequately supported by the facts as set forth by the parties in the motion. The violation at issue here involved a mechanical portable screen that was moved at least once a shift, but which moved at an extremely slow rate of speed and posed far less of a danger of injury than originally found by the Secretary’s representative. Motion at [2-3].

            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 Part 100 regulations, Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 678-679 (Apr. 1987), in the context of a 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 for which the parties have provided an adequate factual basis for the change in the designated gravity of the underlying violation. I thus 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.

            WHEREFORE, the motion for approval of settlement is GRANTED.

            It is ORDERED that Citation No. 8028750 be MODIFIED to reduce the likelihood of injury or illness from “highly likely” to “reasonably likely.” 

            It is further ORDERED that the operator pay a penalty of $3,996.00 within thirty days of this order. Upon receipt of payment, this matter is DISMISSED.

                                                                        /s/ Robert J. Lesnick

                                                                        Robert J. Lesnick

                                                                        Chief Administrative Law Judge 

Distribution:

Robert W. Radosevich, Conference & Litigation Representative, U.S. Department of Labor, MSHA, 604 Cheat Road, Morgantown, WV 26508

Eric Metheny, Vindex Energy Corporation, 265A Glass Dr., Mt. Lake Park, MD 21550

/tjr

Robert W. Radosevich

Conference & Litigation Representative

U.S. Department of Labor, MSHA

604 Cheat Road

Morgantown, WV 26508

Eric Metheny

Vindex Energy Corporation

265A Glass Dr.

Mt. Lake Park, MD 21550