UNITED STATES OF AMERICA

UNITED STATES OF AMERICA

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania Avenue NW, Suite 520N

Washington, DC 20004

Telephone: 202-434-9900 / Fax: 202-434-9949

July 23, 2014

SECRETARY OF LABOR, MINE SAFETY

AND HEALTH ADMINISTRATION

(MSHA)

Petitioner,

JOHN RICHARDS CONSTRUCTION

Respondent.

)

CIVIL PENALTY PROCEEDINGS

DOCKET NO. WEST 2011-129-M

A.C. NO. 24-02070-2232297

DOCKET NO. WEST 2014-31-M

A.C. No. 24-02070-332585

Mine: Richards Pit

DECISION APPROVING SETTLEMENT

Before: Judge Moran

This case is before the Court upon a petition for assessment of a civil penalty under section 105(d) of the Federal Mine Safety and Health Act of 1977. The Secretary has filed a Motion to Approve Settlement. The original assessed amount was $300.00 and the proposed modified penalty amount is $150.00. This case had been set for a hearing which was to commence on July 10, 2014. Shortly before that date, the parties notified the Court that they had reached a settlement and the hearing was cancelled. The proposed settlement is set forth in the table below:

Citation Number	Proposed Penalty	Amended Penalty
WEST 2011-129
6458464	$100.00	$50.00
No modifications to the citation; Reduce the proposed penalty The Secretary represents that the Respondent takes the position and would have alleged at hearing that the citation should be vacated because at the time of the inspection, the plant had not been in production for a year and that the guard had been removed to make repairs and that adjustments had to be made. In addition, Respondent would have argued that the guards were only removed to facilitate the repairs and Respondent would have replaced the guards once the adjustments were made. Respondent contends this was not a violation of the Mine Act. The Secretary reviewed the Citation, the surrounding evidence, and each party’s arguments. Without conceding Respondent’s arguments, but given the conflicting evidence and the associated litigation risk, the Secretary has agreed to a reduction of the proposed civil money penalty. Neither party admits that the arguments of the other party are correct.
WEST 2014-31M
8762608	$100.00	$50.00
No modifications to the citation; Reduce the proposed penalty The Secretary represents that the Respondent takes the position and would have alleged at hearing that the cited area was not a roadway. In addition, the Respondent contended that the citation should be vacated because the CAT 930G only traveled the cited area once and a spotter was used to help guide the equipment through the cited area. Respondent has also contended that this area was not part of the mine and was on a separate commercial area not subject to MSHA jurisdiction. The Secretary reviewed the Citation, the surrounding evidence, and each party’s arguments. Without conceding Respondent’s arguments, but given the conflicting evidence and the associated litigation risk, the Secretary has agreed to a reduction of the proposed civil money penalty. Neither party admits that the arguments of the other party are correct.
8762609	$100.00	$50.00
No modifications to the citation; Reduce the proposed penalty The Secretary represents that the Respondent takes the position and would have alleged at hearing that the gravity was less than contended because the 120v well pump was not plugged in and the copper conductors were not exposed. Respondent would have argued the cited splice did not create an electrocution hazard. In addition, Respondent maintains that the splice was temporary, and it was performed to prevent miners from contacting the wires. Finally, Respondent would have argued that a permanent splice had been ordered to comply with MSHA requirements prior to the inspection. Once Respondent received the permanent splice, and prior to resuming production, it was installed. The Secretary reviewed the Citation, the surrounding evidence, and each party’s arguments. Without conceding Respondent’s arguments, but given the conflicting evidence and the associated litigation risk, the Secretary has agreed to a reduction of the proposed civil money penalty. Neither party admits that the arguments of the other party are correct.
		Total Amended Penalties:	$150.00

The Court accepts the representations and modifications of the Secretary as set forth in the motion to approve settlement. However, the Court unequivocally rejects the Secretary’s claim in its motion that it need not supply a factual basis to the Court for any compromised, mitigated or settled proposed penalty as that stance is contrary to Congress’ express command at section 110(k) of the Mine Act. The Motion takes what has become the Secretary’s now routine approach of insisting that it need do no more than rely upon its pleadings together with a statement reflecting its changes but without any explanation to justify those changes. Then, within the same motion, the Secretary proceeds to provide the required information and thereby relents from its claim that the information need not be supplied. Viewing the reluctantly supplied justification, the Court then considered the representations supplied and finds that the modifications are reasonable and therefore concludes that the proposed settlement is appropriate under the criteria set forth in section 110(i) of the Act.

Accordingly, the motion to approve this settlement is GRANTED and the settlement amount of $150.00 is accepted as appropriate. The Court further notes that the parties agree that the Respondent has already recently paid the settlement amount of $150.00 associated with these two dockets.[1]

William B. Moran

Administrative Law Judge

Distribution:

Lauren A. Polk, Office of the Solicitor, 1999 Broadway, Suite 800, Denver, CO 80202

John Richards Construction, Attn: John Richards, Owner2824 Hwy 83Seeley Lake, MT 59868

[1] On July 1, 2014, Respondent mailed the agreed upon settlement amount of $150.00 to the MSHA U.S. Department of Labor Payment Office. Payment was received at the assessments office on July 3, 2014.