FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

721 19^th Street, Suite 443

Denver, CO 80202-2500

303-844-3577/FAX 303-844-5268

November 10, 2011

ORDER DENYING MOTION TO APPROVE SETTLEMENT

            This case is before me on a petition for assessment of civil penalty filed by the Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”), against Northern Filter Media, Inc. (“Northern Filter”) pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act”). The case involves three citations issued under section 104(a) of the Mine Act. 30 U.S.C. § 814(a). When the case was filed, the Secretary proposed a total penalty of $55,056.00 for the citations.

            The citations were issued following a serious accident at the plant. Citation No. 6494552 alleges a violation of 30 C.F.R. § 56.14107(a) and states that a miner was seriously injured when he became entangled in the drive shaft and the stub on the main feed conveyor in a screen unit. The citation alleges that no guards were provided for the head pulley, the head pulley drive shaft, and the stub shaft of the main feed conveyor. The citation was specially assessed under 30 C.F.R. § 100.05 and the proposed penalty is $52,500.00. In the motion to approve settlement, the Secretary simply states that the Northern Filter alleges that the injured miner “accessed the area contrary to all mine rules and procedures by climbing over a guard rail on the adjacent walkway and climbing out on an I-beam to try to manually work on cleaning the conveyor. . . .” (Sec’y Motion 2). She states that Northern Filter alleges that the miner’s actions were “completely unreasonable, unexpected, and without prior incident at this mine.” Id. In her justification for the 80% reduction in the penalty, the Secretary’s motion states: “Based on these allegations of the operator’s low negligence and the miner’s idiosyncratic behavior and the Secretary’s reevaluation of the 110(i) criteria, the Secretary proposes a revised penalty of $10,000 with no changes to the paper, which is sufficient to ensure future compliance with the [Mine] Act.” Id.

            Citation No. 6494548 alleges a violation of section 56.15005 because the injured miner was not wearing fall protection when he climbed onto the I-beam. The Secretary proposes to reduce the proposed $1,026 penalty for this alleged violation by about 50% for the same reason as the guarding citation. Citation No. 6494551 alleges a violation of section 56.14105 because the injured miner accessed the head pulley of the subject feed conveyor without first shutting the unit down and blocking it against motion. The Secretary proposes to reduce the proposed $1,530 penalty for this alleged violation by about 50% for the same reason as the guarding citation.

            Administrative law judges of the Federal Mine Safety and Health Review Commission have the duty to review proposed settlements in accordance with the provisions of section 110(k) of the Mine 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). The Commission rejected the notion that “Commission judges are bound to endorse all proposed settlements of contested penalties.” Id. at 2479. “Rejections, as well as approvals, should be based on principled reasons.” Id.

            In this case, the motion to approve settlement does not set forth sufficient information for the court to determine whether the proposed settlement is in the public interest or is consistent with the Mine Act’s objectives. The Secretary states that Northern Filter alleges that the behavior of the injured miner was idiosyncratic with the result that its negligence was low, but the Secretary has not proposed to reduce the negligence alleged in the citation. She seems to have accepted North Filter’s characterization at face value. Section 110(i) of the Mine Act sets forth the criteria to be used in assessing penalties. Did the Secretary rely on these criteria when formulating her proposal to reduce the penalty for Citation No. 6494552 by 80%? If so, what criteria did she take into consideration? For example, were such criteria as the size of Northern Filter or its history of previous violations factors? No such information is presented in the motion. She simply states that the reduced penalty of $10,000 is “sufficient to ensure further compliance with the Act.” The motion does not set forth how she arrived at that conclusion or what factors she considered when she determined that $10,000 was “sufficient.”

            This court cannot approve the proposed settlement as submitted by the Secretary. The citations allege that a miner was seriously injured because Northern Filter violated three different safety standards, yet the motion fails to explain why the penalties were compromised to such an extent. Other Commission administrative law judges have denied motions to approve settlement because the Secretary’s motion did not provide sufficient detail to enable Commission review. See, e.g. Alaska Mechanical, Inc., 32 FMSHRC 738 (June 2010) (Chief Judge Lesnick); Marfork Coal Co., 32 FMSHRC 1919 (Nov. 2010) (Judge Moran); and The American Coal Co., 33 FMSHRC 1033 (April 2011) (Judge McCarthy).

            For the reasons set forth above, the motion to approve settlement is DENIED. The parties shall attempt to renegotiate a settlement and set forth the terms of that settlement in sufficient detail so that the terms of the settlement can be reviewed by this court. If the parties cannot reach an agreement within 40 days, they shall contact my office to schedule a conference call in order to set a hearing date.

                                                                         /s/ Richard W. Manning

                                                                        Richard W. Manning

                                                                        Administrative Law Judge

Distribution:

Susan Willer, Esq., Office of the Solicitor, U.S. Department of Labor, Two Pershing Square Building, 2300 Main Street, Suite 1020, Kansas City, MO 64108

Karen L. Johnston, Esq., Jackson Kelly PLLC, 1099 18^th Street, Suite 2150, Denver, CO 80202-1958

RWM