FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC 20004-1710

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

March 28, 2013

ORDER GRANTING MOTION TO WITHDRAW CONTEST

ORDER TO PAY

Before:            Judge McCarthy 

            This case is before me upon a Petition for Assessment of Civil Penalty under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). On February 21, 2013, I issued an Order Rejecting Amended Settlement Motion and Order for Certification of Interlocutory Review. In this order, I certified two questions for interlocutory review by the Commission: (1) whether the Secretary can remove a significant and substantial designation without leave of the Commission in settlement of a proposed assessment of civil penalty that has been contested, and (2) whether the Mine Act authorizes Commission review of non-pecuniary settlement provisions. On March 4, 2013, the Commission granted review of the first issue and ordered that the parties file response briefs in thirty days.

            On March 11, 2013, Respondent filed a Motion to Withdraw Contest of the single violation involved in this matter. In its motion, Dickenson-Russell states that it has paid the civil penalty associated with Citation No. 8190957, and that it withdraws its notice of contest of the citation. On March 27, 2013, the Commission issued an order vacating the order directing interlocutory review and remanded this case to the undersigned for further proceedings, including a determination of whether this proceeding is moot.

            Upon review of the record and Respondent’s withdrawal of contest, I find that the current proceeding is moot. Given Respondent’s withdrawal of contest, this matter reverts back to the status quo ante prior to said contest. Accordingly, the citation and proposed penalty of $971.00 are affirmed as originally proposed in the Secretary’s Petition for Assessment of Civil Penalty. Citation No 8190957 shall be recorded as “reasonably likely” to cause an injury or illness and that such injury would reasonably be expected to result in “lost workdays or restricted duty” to three miners. The violative condition remains classified as the result of “moderate” negligence, and the S&S designation remains intact.

            Accordingly, the Motion to Withdraw Contest is GRANTED and the operator is ORDERED to pay $971.00 within thirty days of the date of this decision, if Respondent has not done so already.

/s/ Thomas P. McCarthy

Thomas P. McCarthy

Administrative Law Judge

Distribution:

A. Scott Hecker, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22^nd Floor West, Arlington, VA 22209-2247

Douglas N White, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22^nd Floor West, Arlington, VA 22209-2247

Robert S. Wilson, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22^nd Floor West, Arlington, VA 22209-2247

Cameron S. Bell, Esq., Penn Stuart, P.O. Box 2288, Abingdon, VA 24212

/tjr