FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE, NW, SUITE 9500

WASHINGTON, DC 20001-2021

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

December 20, 2011

ORDER REJECTING SETTLEMENT MOTION

Before: Judge McCarthy

            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 parties have settled the matter and 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. 8093045 be modified to change the classification of the citation from a 104(d)(1) citation to a 104(a) citation and to reduce the level of negligence from “high” to “moderate.” The modifications are accompanied with a reduction in the penalty from $13,609.00 to $3,690.00.

            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.

            In this case, the Settlement Motion fails to provide the required information, inasmuch as no facts have been provided in support of the proposed penalty reduction agreed to by the parties. Therefore, the Motion is REJECTED. The Secretary may submit an Amended Motion containing the required information within fifteen days of receipt of this order for my consideration. Otherwise, this case will be set for hearing pursuant to Commission Rule 51, 29 C.F.R. § 2700.51.

                                                                        /s/ Thomas P. McCarthy

                                                                        Thomas P. McCarthy

                                                                        Administrative Law Judge

Distribution:

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

James F. Bowman, Rock N Roll Coal Company, Inc., P.O. Box 99, Midway, WV 25878

/tjr