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

October 15, 2012

ORDER REJECTING SETTLEMENT MOTION

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). The Secretary has filed a motion pursuant to Commission Rule 31, 29 C.F.R. § 2700.31, seeking approval of the proposed settlement. The Solicitor has requested that Citation No. 8190957 be modified to delete the significant and substantial designation and to reduce the proposed penalty from $971.00 to $500.00.

            The motion submitted by the Solicitor, however, fails to predicate the modifications upon any factual support. Commission Rule 31(b)(1), 29 C.F.R. § 2700.31(b)(1), mandates that for each violation, the “motion to approve a penalty settlement” must include “facts in support of the penalty agreed to by the parties.” The Commission has long held that “settlements are committed to the ‘sound discretion’ of the Commission and its judges” and that judges are not “bound to endorse all proposed settlements.” See, e.g., Madison Branch Management, 17 FMSHRC 859, 864 (June 1995) (quoting Knox County Stone Co., 3 FMSHRC 2478, 2480 (November 1981)). In the exercise of such discretion, judges must be provided with enough facts to make a reasonably informed decision.

            The Arlington Solicitor’s Office has long been on notice of the Commission’s requirements regarding the necessity of providing a factual basis for each and every settlement. Yet despite clear instruction from both the undersigned and the Commission, the Secretary has chosen to remain intransigent and has wasted the limited resources of Commission ALJs by periodically refusing to comply with Rule 31(b)(1). See Rock N Roll Coal Co., 34 FMSHRC 319 (Jan. 2012) (ALJ) (Order Denying Petitioner’s Motion for Reconsideration of Order Rejecting Settlement); Black Beauty Coal Company, 34 FMSHRC ___, slip op. (LAKE 2008-327, LAKE 2008-590, & LAKE 2009-2240) (Aug. 20, 2012) (unanimously finding that Commission judges are authorized to require parties to submit factual support necessary for the proper review of proposed settlements of contested civil penalties).

          Most recently, in a civil penalty proceeding before Judge Rae, Docket No. WEVA 2010-1585, the Secretary’s representative at the Arlington Solicitor’s Office similarly refused to provide a factual basis for the modification of the single citation at issue. Following a conference call in which Judge Rae ordered the Secretary to file an amended settlement, the Secretary acquiesced and provided an amended settlement in accordance with the judge’s request. The Secretary, however, maintained in her proposed settlement order:

It is the Secretary’s position that although Section 110(i) and (k) of the Mine Act require the Commission and its administrative law judges to review and approve the penalty aspects of settlements, substantive modifications to citations and orders are within the prosecutorial and enforcement discretion of the Secretary.  The Secretary is voluntarily providing additional information in support of her Motion to Approve Settlement in this case at the request of the administrative law judge, but preserves her right to argue in other cases that neither the Act nor applicable legal principles related to the enforcement authority of a government agency require such information to be provided. 

Proposed Consent Order Approving Settlement at 2, Double Bonus Coal Co., Unpublished Decision Approving Settlement (Oct. 2, 2012).

            Judge Rae and I are not alone in having to needlessly exhaust the resources of the Commission to address this ongoing problem. The Secretary may not continue to act in blatant disregard of the Mine Act, Commission Rules, and previous orders unless an appeals court overturns the well-established principles set forth in the Commission’s Black Beauty decision. To continue to do so may serve as grounds for referring the Secretary’s representatives to the Commission for disciplinary proceedings.

            In this case, the Settlement Motion fails to provide the required information, inasmuch as no facts have been provided in support of the S&S modification proposed to justify the penalty reduction agreed to by the parties. Therefore, the Motion to Approve Settlement is REJECTED. Pursuant to Commission Rule 51, 29 C.F.R. § 2700.51 a hearing is scheduled for November 15, 2012 under separate cover.

                                                                        /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

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

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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

NOTICE OF HEARING

AND

ORDER TO FILE PRE-HEARING REPORT

            In accordance with Section 105(d) of the Federal Mine Safety and Health Act of 1977,the “Act,” 30 U.S.C. §801, et seq., this case will be heard on November 15, 2012, and continuing dates after until completed at 12:00 noon local time in Abingdon, Virginia. The specific hearing site will be designated later.

            The proceedings will be conducted pursuant to the Act and 29 C.F.R. § 2700.50, et seq. The issues are whether Respondent(s) committed the violations alleged in the citation(s), and, if so, the amount of monetary civil penalties that must be assessed.

            Each party shall complete discovery on or before November 5, 2012. Each party shall file with the undersigned and with one another on or before November 5, 2012, a statement regarding each of the following items:

            1. Whether jurisdiction exists because Respondent was an operator of a mine

            as defined in section 3(b) of the Mine Act, 30 U.S.C. § 803(b), and the products

            of the subject mine entered the stream of commerce or the operations or products

            thereof affected commerce within the meaning and scope of section 4 of the Act,

            30 U.S.C. § 803.

            2. Facts that are established by admissions in the pleadings or by stipulation of the

            parties counsel or representatives.

            3. Facts that remain to be litigated at trial.

            4. Issues of law that remain to be litigated at trial.

            5. Witnesses each party intends to call, their positions, and the substance of their

            testimony.

            6. List of exhibits each party intends to offer in evidence.

            7. Estimate as to probable length of the trial.

            Any party requesting subpoenas for the attendance of witnesses or the production of documents shall file the request at least twenty days prior to the hearing.

            Any person planning on attending the hearing who requires special accessibility features and/or any auxiliary aids (such as sign language interpreters) must request such features and/or aids sufficiently in advance of the hearing to allow accommodation, subject to the limitations set forth in 29 C.F.R. §§ 2706.150(a), 2706.160(d).

                                                                        Thomas P. McCarthy

                                                                        Administrative Law Judge

Distribution: (Certified Mail & Email)

A. Scott Hecker, 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

Enclosure - Exhibit List

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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

________________________ EXHIBIT LIST

                                                  Petitioner’s/Complainant’s or Respondent’s

Petitioner’s, Complainant’s or Contestant’s exhibits shall be designated “P-1” or “C-1.” Respondent’s exhibits shall be designated “R-1". Exhibits shall be numbered seriatim. Courtesy copies of exhibits should be provided to the Judge and opposing counsel.

A. Scott Hecker, 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