FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

 

OFFICE OF ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER, SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE: 412-920-7240 / FAX: 412-920-8689

 

February 11, 2014

 

SECRETARY OF LABOR

  MINE SAFETY AND HEALTH   

  ADMINISTRATION (MSHA),

                           Petitioner

 

                        v.

 

BRODY MINING, LLC,

                           Respondent

 

 

CIVIL PENALTY PROCEEDING

 

Docket No. WEVA 2013-674

A.C. No. 46-09086-314409

 

 

 

 

Mine: Brody Mine No. 1

           

                       

ORDER TO MODIFY

DECISION APPROVING SETTLEMENT

ORDER TO PAY

 

Before:  Judge Steele

 

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 proposed penalties totaling $71,400.00 for the violations alleged in Docket No. WEVA 2013-674. The parties have agreed to settle this docket for penalties totaling $44,000.00.

 

The Secretary requests that Citation Nos. 3563916 and 3563917 be modified to 104(a) Citations with “Moderate” negligence. This modification is requested because at hearing because the Respondent would present evidence that in the experienced judgment of the day-shift foreman, the cited oil leaks on the #409 Fletcher Roof Bolter did not pose a hazard such that the machine had to be taken out of service immediately. Therefore the foreman’s reasoned decision not to take the machine out of service did not constitute high negligence. The Respondent would further present evidence that the Roof Bolter was not likely to become hot enough to ignite the leaked oil, and it was not reasonably likely that the accumulation of oil would cause a mine fire or lead to serious injury. Based on this additional information and the modifications above, the Secretary has requested reductions in penalties in each Citation, from $35,700.00 to $22,000.00.

 

I have considered the representations and documentation submitted in these cases, and I conclude that the proffered settlement is appropriate under the criteria set forth in section 110(i) of the Act.

 

WHEREFORE, the motion for approval of settlement is GRANTED.

 

It is further ORDERED that the operator pay a penalty of $44,000.00 within 30 days of this order.[1] Upon receipt of payment, this case is DISMISSED.

 

 

 

                                                                        /s/ William S. Steele 

William S. Steele

Administrative Law Judge

 

 

 

Distribution:

 

Robert Alan Kelly, Office of the Regional Solicitor, U.S. Dept. of Labor, 1100 Wilson Blvd., 22nd Floor West, Arlington, VA 22209-2247

 

Michael T. Cimino, Jackson Kelly PLLC, 500 Lee St. East, Suite 1600, P.O. Box 533, Charleston, WV 25322

 

/mzm


[1] Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 63179-0390