FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001

July 10, 2012

DECISION ON REMAND

GRANTING THE SECRETARY’S MOTION

TO APPROVE SETTLEMENT

Appearances:              Lucy C. Chiu, Esq., Office of the Solicitor, U.S. Department of Labor,

                                    Arlington, Virginia, for the Petitioner;

                                    Timothy W. Gresham, Esq., Penn, Stuart & Eskridge, Abingdon, Virginia,

                                    for the Respondent.

Before:                        Judge Feldman

            The initial decision in this matter determined that Ernest Matney (“Matney”), as an agent of Knox Creek Coal Corporation (“Knox Creek”), was not personally liable under section 110(c) of the Mine Act, 30 U.S.C. § 820(c), for failing to conduct an adequate preshift examination in violation of 30 C.F.R. § 75.360(a)(1), and failing to protect personnel from roof and/or rib falls in violation of 30 C.F.R. § 75.202(a). 31 FMSHRC 1422, 1424, 1438 (Dec. 2009) (ALJ). On April 25, 2012, the Commission reversed the initial determination that Matney was not liable under section 110(c) for knowingly authorizing Knox Creek’s violations and remanded for the assessment of a civil penalty. 34 FMSHRC __ (Apr. 2012), slip op. at 11. The Commission found that Matney was personally liable for failing to address hazardous roof conditions that were readily apparent. Id. However, the Commission did not disturb the initial finding that the Secretary failed to demonstrate, by a preponderance of the evidence, that Matney knew, or should have known, that a crib had been built and then dismantled under a sheared roof bolt. Slip op. at 8, fn. 9. The Secretary initially proposed a civil penalty of $2,700.00 against Matney for the two subject violations.

            The Secretary now has filed a motion for the approval of settlement. Matney has agreed to pay a total reduced civil penalty of $2,160.00 in satisfaction of the cited violations. The reduction in penalty is based on Matney’s inability to pay the civil penalty initially proposed because he is currently a recipient of Social Security disability payments.

            I have considered the representations submitted in this matter and I conclude that the proffered settlement is appropriate under the criteria set forth in Section 110(i) of the Act, with particular emphasis on the ability to pay criterion. 30 U.S.C. § 820(i). WHEREFORE, the Secretary’s motion to approve settlement IS GRANTED. Pursuant to the parties’ agreement, Ernest Matney IS ORDERED to pay the $2,160.00 civil penalty within 40 days of this order in satisfaction of the two violations at issue. Upon receipt of timely payment, the captioned civil penalty matter IS DISMISSED.        

                                                                         /s/ Jerold Feldman

Jerold Feldman

                                                                         Administrative Law Judge

Distribution: (Certified Mail)

Lucy C. Chiu, Esq., Office of the Solicitor, U.S. Department of Labor,

1100 Wilson Boulevard, 22nd Floor West, Arlington, VA 22209-2247

Timothy W. Gresham, Esq., Penn, Stuart & Eskridge, 208 E. Main Street,

P.O. 2288, Abingdon, VA 24212

/jel