FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, D.C. 20004

September 30, 2014 

DECISION

Appearances:  J. Malia Lawson, Esq.,U.S. Department of Labor, Office of the Solicitor,

Nashville, Tennessee, on behalf of the Secretary of Labor;

Gary D. McCollum, Esq., Excel Mining, LLC, Lexington, Kentucky, on behalf of Respondent.

Before:            Judge Paez

This case is before me upon the petitions for the assessment of civil penalty filed by the Secretary of Labor (“Secretary”) under section 105 of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815. These matters were called for hearing on September 11, 2014, in Pikeville, Kentucky. For an hour beginning at the scheduled hearing time, the parties were permitted to attempt an amicable resolution of these dockets, given that counsel, witnesses, and the principals were all in attendance. At the conclusion of this period, I went on the record whereby the parties stated that they had resolved their differences. (Tr. 6–7.) Counsel for the Secretary specified the terms of the settlement, which I outline below, and counsel for Excel Mining, LLC (“Excel” or “Respondent”) concurred. (Tr. 7–8.) The parties read the terms of the settlement into the record and provided the rationale for the settlement agreement. (Tr. 7-10.)

The Secretary’s originally proposed assessment for both dockets was $12,143.00, and the parties’ proposed settlement amount is $10,500.00. The proposed settlement is as follows: 

KENT 2012-952

Citation/

Order No.      Date            30 C.F.R.          Assessment         Settlement

8265645          01/10/2012     48.7(a)(3)          $ 3,143.00           $ 2,500.00

8268748          01/10/2012     50.10(b)            $ 5,000.00           $ 5,000.00

                                                Total:                $ 8,143.00           $ 7,500.00

KENT 2012-953

Citation/

Order No.      Date            30 C.F.R.         Assessment         Settlement

8268749          01/10/2012     50.12                 $ 4,000.00           $ 3,000.00

                                    Cumulative Totals:       $12,143.00          $10,500.00

In support of the proposed settlement, the Secretary has submitted information pertaining to the six statutory civil penalty criteria found in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), including information regarding Respondent’s size, ability to continue in business, and history of previous violations. In addition, the Secretary and Respondent have stated reasons on the record fully warranting the agreed upon reduction in the proposed penalties.

After review and consideration of the pleadings, arguments, and submissions in support of the settlement motion, I find that the proposed settlement is reasonable and in the public interest. Pursuant to 29 C.F.R. § 2700.31, the motion is GRANTED, and the settlement is APPROVED.

ORDER

Respondent is ORDERED to PAY a civil penalty of $10,500.00 within 30 days of this Order.

Additionally, within the same 30 days, the Secretary is ORDERED to MODIFY the following:

                                                                              /s/ Alan G. Paez

                                                                              Alan G. Paez

                                                                              Administrative Law Judge

Distribution:

J. Malia Lawson, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street, Suite 230, Nashville, TN 37219-2456

Gary D. McCollum, Esq., Assistant General Counsel, Excel Mining, LLC, 771 Corporate Drive, Suite 500, Lexington, KY 40503

/cm