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: 412-928-8689
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SECRETARY OF LABOR MINE
SAFETY AND HEALTH ADMINISTRATION (MSHA), Petitioner, v. PEABODY
MIDWEST MINING LLC, Respondent. |
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CIVIL PENALTY PROCEEDING Docket No. LAKE 2011-302 A.C. No. 12-02010-242576 Mine: Air Quality #1 Mine DAILY CIVIL PENALTY PROCEEDING Docket No. LAKE 2011-856 A.C. No. 12-02010 Mine: Air Quality #1 Mine |
DECISION
APPROVING SETTLEMENT
ORDER
TO MODIFY
ORDER
TO PAY
Before:
Judge Harner
These cases are before me upon
petitions for assessment of civil penalties under section 105(d) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d) (“Mine Act”). A Joint
Motion for approval of a settlement agreement on these cases has been submitted
to me.
Docket
No. LAKE 2011-856
concerns a proposed daily civil penalty issued pursuant to Section 110(b) of
the Mine Act for a continuing violation. The underlying Section 104(a) citation
(No. 6670852) for a violation of 30 C.F.R. § 50.41 was issued on November 9,
2010. The Respondent, Peabody Midwest Mining, contested the citation (Docket
No. LAKE 2011-118-R) before the Federal Mine Safety and
Health Review Commission (“Commission”). On June 23, 2011, the Secretary
issued a notification of the proposed assessment of penalty to Peabody pursuant
to 30 C.F.R. § 100.5(c), and proposed a daily penalty of $4,000.00 until
Peabody abated the citation. Contest proceedings related to the underlying
citations continued before the Commission and the United States Court of
Appeals for the Seventh Circuit. The underlying citation was affirmed by the
Seventh Circuit on April 26, 2013. 715 F.3d 631. On
May 15, 2013, Peabody provided notice to the Secretary that although it
disagreed with the Court’s decision it would comply with it, and the proposed daily
penalty stopped accruing.
The total penalty that accrued until
Respondent notified the Secretary that it would comply with the Court’s
decision and the penalty stopped accruing was approximately $2,760,000. By
order dated December 18, 2014, this Court appointed Thomas Stock and Mark
Malecki as settlement attorneys. The proposed settlement amount agreed to by
the parties is $642.000.00, payable in two installments as set forth below.
For the reasons that follow I approve
the parties’ joint motion to settle this docket. Under the guidance of the
appointed settlement attorneys, the parties were able to fully discuss and
confer on their respective positions with respect to this docket. In addition,
I note that although the Act provides for a daily civil penalty in response “to
operator recalcitrance in situations where … [a] violation is not abated in a
timely manner”[1],
the Secretary’s decision to propose a daily civil penalty is discretionary as
is the dollar amount of such daily civil penalty. Further, the issues and
defenses raised in the contest proceeding were substantial
and involved, inter alia, the interpretation of other federal statutes and
their relationship to the Mine Act. Finally, the Respondent’s failure to
provide the requested Part 50 information did not affect the health and safety
of miners while performing ongoing mining operations at the mine.
With regards to Citation No. 6670852
contained in Docket No. LAKE 2011-302,
the Respondent has agreed to pay the originally assessed amount of $196.00, and
the parties agree that the negligence designation will be modified from “High”
to “Moderate.”
Having considered the above, the Joint Motion and the other
documentation,
I find that the modifications are reasonable as set forth in the motion to
approve settlement and conclude that the proposed settlement is appropriate
under the criteria set forth in section 110(i) of the Act. The motion to
approve settlement is GRANTED, and the modifications are accepted as set
forth in the motion.
With regards to Docket No. LAKE 2011-856, Peabody Midwest Mining LLC is hereby ORDERED to pay the Secretary of Labor the sum of $642,000.00. The penalty will be payable in two installments, with $321,000.00 being due within 30 days of this decision, and $321,000.00 being due within 120 days of this decision.[2] Upon receipt of the two payment, Docket No. LAKE 2011-856 is DISMISSED.
With regards to Docket No. LAKE 2011-302, Peabody Midwest Mining LLC is hereby ORDERED to pay the Secretary of Labor $196.00 within 30 days of the date of this decision. Upon receipt of the payment, Docket No. LAKE 2011-302 is DISMISSED.
/s/ Janet G. Harner
Janet
G. Harner
Administrative
Law Judge
Distribution:
Samuel
Lord, Esq., U.S. Dept. of Labor, 1100 Wilson Blvd. Suite 2200, Arlington, VA
22209
Dan
Wolff, Esq., Crowell & Moring LLP, 1001 Pennsylvania Ave., NW, Washington,
DC 20004
/mzm