Before:            Judge Rae

            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 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. 8194686 be modified to reduce the type of injury that could reasonably be expected to occur to “permanently disabling,” and reduce the penalty from $1,111.00 to $777.70.

            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 the motion to approve settlement must include “facts in support of the penalty agreed to by the parties” for each violation. The Arlington Solicitor’s Office has been on notice of the Commission’s clear instructions to provide a factual basis for each and every 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). 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.

            The settlement documents were filed on October 3, 2012. Immediately thereafter, the solicitor was sent an email informing him that a revised Motion and Order were needed including a factual basis for the modifications. No revision has been received. The Secretary is acting in direct contravention of my Order as well as recently issued Commission decisions and obstructing the judge’s authority and responsibility to enforce the intent and purpose of the Mine Act.

              Therefore, the Motion to Approve Settlement is REJECTED and the parties are ORDERED to appear for a hearing on the merits of the case on November 8, 2012.

NOTICE OF HEARING/

NOTICE OF HEARING SITE

            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 is set for hearing on November 8, 2012, commencing at 8:30a.m. The location is:

                                                            Southwest Virginia Higher Education Center

One Partnership Circle

Abingdon, VA 24210

Conference Room 228

            The hearing will be conducted in accordance with the Mine Act and the Commission’s Procedural Rules addressing the subject, as set forth at 29 C.F.R. Part 2700, Subpart G. The issues to be resolved are whether the Respondent violated the Act and the cited regulatory standards, and if so, the level of gravity and degree of negligence of those violations which are proved, as well as the appropriate civil penalty to be imposed.

            The parties are reminded to comply with the terms of my Prehearing Order previously issued. It is further ordered that any party intending to offer exhibits at the hearing shall submit, five (5) days prior to the commencement of the hearing, a marked copy of all exhibits to the opposing party and the judge. The Secretary’s exhibits shall be designated “S-#” and Respondent’s exhibits shall be designated “R-#." Exhibits shall be clearly marked and numbered seriatim. If opposing counsel has an objection to the admission of any exhibit, they shall state the grounds for the objection in writing and submit it to the judge and opposing counsel at least three (3) days prior to the commencement of the hearing.

            A list of witnesses (including experts) and a statement as to their expected testimony (and copy of any report prepared by an expert) shall also be exchanged by the parties with a copy submitted to the judge five (5) business days prior to the commencement of the hearing.

            Any stipulations agreed upon by the parties shall be submitted to the judge three (3) days prior to the commencement of 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 those sufficiently in advance of the hearing to allow accommodation, subject to the limitations set forth in 29 C.F.R. §2706.150(a) and § 2706.160(d).

            If a settlement is reached after November 5, 2012, the parties are directed to appear at the hearing. In the event of a settlement reached before this date, the Secretary is directed to contact my law clerk, Maggie Palmer, at 202-233-4015 or at mpalmer@fmshrc.gov immediately. Unless a written Order is issued upon my direction removing the matter from the docket, the parties are directed to appear at the time and place designated for hearing.

            No continuances will be granted.

            If you have any questions or concerns, please contact Ms. Palmer.                            

                                                                        /s/ Priscilla M. Rae  

Priscilla M. RaeAdministrative Law Judge

Distribution:

 Pollyanna E. F. Hampton, Esq., U. S. Department of Labor, 1100 Wilson Blvd., 22^nd Floor West, Arlington, VA 22209-2247

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

Wm. Scott Wickline, Esq., Betts Hardy & Rodgers, PLLC. 500 Lee St. East, Ste. 800, P.O. Box 3394, Charleston, WV 25333-3394

/mep