FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004-1710
SECRETARY
OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. LAKE 2011-13
:
THE AMERICAN
COAL COMPANY :
:
and :
:
UNITED MINE WORKERS
:
Of AMERICA :
:
and
:
:
UNITED STEEL,
PAPER and FORESTRY, :
RUBBER MANUFACTURING, ENERGY, :
ALLIED INDUSTRIAL
and SERVICE :
WORKERS INTERNATIONAL
UNION
:
BEFORE:
Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
DECISION
BY THE COMMISSION:
This civil penalty proceeding,
arising under the Federal Mine Safety and Act of 1977,
30
U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”), is before us for a second
time on interlocutory review. At issue is whether the Commission’s
Administrative Law Judge erred in denying a motion to approve a settlement between
The American Coal Company (“AmCoal”) and the Secretary of Labor.
In
our first decision on review, we affirmed in all respects the Judge’s denial of
the proposed settlement. American Coal
Co., 38 FMSHRC 1972, 1986 (Aug. 2016). We noted that the Secretary had
chosen this proceeding as a “test case” for advancing his position that the
Commission’s authority to review settlements of contested civil penalties under
section 110(k) of the Mine Act, 30 U.S.C. § 820(k),[1] is
much more limited than that described in Black
Beauty Coal Co., 34 FMSHRC 1856, 1860-64 (Aug. 2012).[2] We
reaffirmed our settlement authority stated in Black Beauty and concluded that the Judge did not abuse his
discretion in denying settlement approval when, contrary to the Commission’s
procedural rules and precedent, the Secretary refused to provide any facts to
support the penalty reduction agreed to in settlement. We remanded the matter
to the Judge, and the Secretary ultimately submitted an amended motion to
approve settlement.
In
this decision, we consider a different question: whether the Judge applied an
incorrect legal standard in denying the amended settlement motion. For the
reasons discussed below, we conclude that the Judge erred, vacate his denial,
and remand for further proceedings consistent with this opinion.
I.
Factual and
Procedural Background
This case
involves 32 contested citations issued to AmCoal in 2010. In 2013, the
Secretary filed a motion to approve a proposed settlement that involved a 30%
across-the-board penalty reduction for each citation, while preserving all
citations as written. The Judge issued a decision denying the motion because
the motion had failed to provide any factual support for the penalty reduction.
Rather than provide such facts, the Secretary essentially represented to the
Judge that the proposed settlement was in the public interest and compatible
with the enforcement goals of the Department of Labor’s Mine Safety and Health
Administration (“MSHA”).
We granted
interlocutory review of the Judge’s denial. In our decision, noting the rare
split-enforcement model that the Commission shares with MSHA and the unique settlement
review authorized by section 110(k), we stated that “although Congress gave the
Secretary most of the enforcement powers under the Act, it expressly chose to
give to the Commission the authority to assess penalties and approve
settlements.” 38 FMSHRC at 1979. We explained that the Commission applies the
standard of whether a proposed penalty reduction is fair, reasonable,
appropriate under the facts, and protects the public interest in evaluating
whether a settlement should be approved. We further stated that factual information
supporting the penalty agreed to through settlement must be submitted in
accordance with Commission Procedural Rule 31, 29 C.F.R. § 2700.31, and
Commission precedent. Because the Secretary had not provided facts to support
the proposed penalty reduction, we concluded that the Judge had not abused his
discretion in denying the settlement motion. Accordingly, we affirmed the denial
and remanded for further proceedings.
The Secretary then
filed a petition for review of the Commission’s decision with the United States
Court of Appeals for the D.C. Circuit. On March 17, 2017, the Secretary filed a
motion to withdraw his petition from the D.C. Circuit, and the court granted
the motion.[3]
The Secretary
subsequently submitted an amended motion to approve the settlement to the Judge.
In the motion,
the Secretary provided additional information. This information did not include
additional facts specifically tied to the six penalty criteria listed in
section 110(i) of the Mine Act, 30 U.S.C. § 820(i),[4]
for each of the 32 citations. Rather, the Secretary made general allegations,
including that there was a substantial risk that the court could reduce the
degree of negligence or gravity with respect to 14 of the 32 citations, and that
one additional citation ran the risk of being vacated because of a legal
dispute between the operator and the Secretary regarding the standard cited. The
Secretary further stated that after trial, if each of the citations at risk
received a worst-case outcome, the resulting penalties would reflect an
approximately 50% reduction from the penalties originally proposed by the
Secretary, based on the penalty tables contained in 30 C.F.R. Part 100. Given
this, the Secretary asserted that an across-the-board 30% reduction reflected
an appropriate compromise. The Secretary further submitted that he considered
the fact that the proposed settlement preserved all of the citations as written
to be a significant advantage for future enforcement purposes.
On May 2, 2017,
the Judge issued an order denying the Secretary’s motion. 39 FMSHRC 1173 (May
2017) (ALJ). The Judge concluded that the Secretary had again failed to provide
adequate facts to support the 30% across-the-board reduction for each citation
agreed to in settlement. Id. at 1178.
The Secretary subsequently sought interlocutory review of the Judge’s denial.
On May 19, 2017,
the Judge issued an order denying the Secretary’s motion for interlocutory
review. 39 FMSHRC 1187 (May 2017) (ALJ). The Judge reiterated his finding that
a “one-size-fits-all 30% reduction is not likely to be satisfactory because
each violation is fact-specific.” Id.
at 1188. The Judge emphasized his view that the facts required are facts about
the alleged violations. The Judge also explained that only “legitimate disputes of fact” are usually
sufficient to support a proposed reduction. Id.
The Secretary again
filed a petition for interlocutory review with the Commission, which AmCoal
subsequently joined. The Commission granted interlocutory review and heard oral
argument. As they did below, the United Mine Workers of America (“UMWA”) and
the United Steel, Paper and Forestry, Rubber Manufacturing, Energy, Allied
Industrial and Service Workers International Union intervened in this
proceeding and participated in oral argument.
On review, the
Secretary and AmCoal argue that the Judge applied an erroneous legal standard
in concluding that the Secretary failed to provide facts in support of the
proposed settlement. They submit that such facts are not limited to facts
related to the section 110(i) penalty criteria or to the alleged violations. The
Secretary and operator further contend that the Commission’s Procedural Rules
do not preclude a settlement of multiple penalties for a uniform percentage
reduction for each penalty and that the Judge’s denial essentially makes such
reductions impermissible. Finally, AmCoal argues that the Commission should not
require a settling party to concede “legitimate” questions of fact during the
settlement approval process, as the Judge required. The intervenor unions
respond that the Commission should affirm the Judge’s order as a proper
exercise of his discretion.
II.
Disposition
Our
disposition of the first interlocutory appeal of this proceeding, as law of the
case, is the basis upon which this decision stands. See Dolan v. F&E Erection Co., 23 FMSHRC 235, 240 (Mar. 2001). We
briefly reiterate only those portions of the decision necessary for disposition
of the instant review.
Section
110(k) of the Mine Act sets forth in relevant part that a proposed penalty that
has been contested shall only be settled if approved by the Commission or court.
See n.1, supra.
The
legislative history of section 110(k) describes the Congressional intent behind
this provision. The Senate Report states that the “compromising of the amounts
of penalties actually paid” had reduced “the effectiveness of the civil penalty
as an enforcement tool.” S. Rep. No. 95-181, at 44 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal Mine
Safety and Health Act of 1977, at 632 (1978) (“Legis. Hist.”). The Committee noted that settlement efforts were “not
on the record, and a settlement need not be approved by the Administrative Law
Judge.” Id. In order to solve this
problem, Congress emphasized the need for transparency in the penalty
settlement process, so that miners, Congress, and other interested parties
could “fully observe the process.” Id.
at 633. The requirements of section 110(k) were “intend[ed] to assure that the
abuses involved in the unwarranted lowering of penalties as a result of
off-the-record negotiations are avoided.” Id.
Thus, Congress expressed its “inten[t] that the Commission and the Courts will
assure the public interest is adequately protected before any reduction in
penalties.”[5]
Id.
Based
on the language of section 110(k) and its legislative history, the Commission
has explained that “Congress authorized the Commission to approve the
settlement of contested penalties in section 110(k) ‘[i]n order to ensure
penalties serve as an effective enforcement tool, prevent abuse, and preserve
the public interest.’” AmCoal, 38
FMSHRC at 1976 (quoting Black Beauty,
34 FMSHRC at 1862). In “effectuating this Congressional mandate, the Commission
and its Judges consider whether the settlement of a proposed penalty is fair,
reasonable, appropriate under the facts, and protects the public interest.” Id. at 1976.
The
Commission and its Judges “must have information sufficient to carry out this
responsibility.” Id. at 1981. Consequently,
through its procedural rules, the Commission has required parties to submit
facts supporting a penalty amount agreed to in settlement. Id. In particular, Commission Procedural Rule 31 requires that a
motion to approve penalty settlement must include for each violation “the
penalty proposed by the Secretary, the amount of the penalty agreed to in
settlement, and facts in support of the penalty agreed to by the parties.” 29
C.F.R.
§
2700.31(b)(1).
The
Commission reviews a Judge’s denial of a proposed settlement under an abuse of
discretion standard. Sec’y of Labor on
behalf of Shemwell v. Armstrong Coal Co., 36 FMSHRC 1097, 1101 (May 2014). An
abuse of discretion may be found where “there is no evidence to support the
Judge’s decision or if the decision is based on an improper understanding of
the law.” Id. (citation omitted).
As
the Commission has repeatedly observed, a Judge’s “‘front line oversight of the
settlement process is an adjudicative function that necessarily involves wide
discretion.’” Id. (citations
omitted). Judges must have sufficient information to fulfill their duty of
determining if a settlement of a penalty is fair, reasonable, appropriate under
the facts, and protects the public interest. Moreover, such information permits
a Judge to fulfill the duty of articulating reasons for the approval so that
the process of compromising penalty amounts is transparent, as Congress
intended. A Judge who properly determines that a settlement motion lacks
sufficient information may permissibly request further facts from the parties.[6] See Black Beauty, 34 FMSHRC at 1863.
The
Commission’s settlement procedures have resulted in a near perfect approval rate
for motions to approve settlement. In fact, as the Secretary agreed, Oral Arg.
Tr. 19, from fiscal year 2015 through approximately seven months of fiscal year
2018, 99.8% of proposed settlements have been approved.[7]
Against
this backdrop, we review the Judge’s denial of the proposed settlement in his
May 2 and May 19 orders. The Judge identified the “essential problem” with the
Secretary’s amended motion to approve settlement as a failure to “provide a
penalty-factor related explanation to support the uniform 30% reduction for
each citation.” 39 FMSHRC at 1178. The Judge added that “even if plausible
facts were presented and the Secretary admitted those facts presented genuine
disputes,” it would be unlikely for each citation to end up with a 30%
reduction. 39 FMSHRC at 1188.
We
conclude that the Judge made prejudicial errors in the determinations
supporting his denial of the proposed settlement, which amounted to an abuse of
discretion.
First,
the Judge did not refer to the standard we articulated for evaluating penalty
reductions in settlement in our first interlocutory decision, i.e., whether the
proposed penalty reduction is fair, reasonable, appropriate under the facts,
and protects the public interest. Neither is there any indication that the
Judge attempted to apply that standard.
Second,
the Judge erred by applying the criteria in section 110(i) of the Mine Act in
an overly rigid manner, resulting in determinations that conflict with
Commission precedent. The Judge stated
that the facts supporting the settlement “must be tied to the six statutory
criteria in [s]ection 110(i),” and concluded that the Secretary provided “no facts to support the reduction
sought.” 39 FMSHRC at 1176, 1177.
The
Judge recognized that the Commission has previously explained that standards
for factual support for a penalty reduction in settlement may be found in
section 110(i).[8]
AmCoal, 38 FMSHRC at 1981; Black Beauty, 34 FMSHRC at 1864. However,
we have also stated that “parties may submit facts supporting a settlement that
fall outside of the section 110(i) factors but that support settlement.” 38
FMSHRC at 1982. We explained that “section 110(k) ‘contains no explicit
restrictions on what a Commission Judge may consider when reviewing a
settlement proposal,’” and that the lack of restrictions does not mean that the
Commission’s review is unbounded. Id.
(quoting Black Beauty, 34 FMSHRC at 1865).
“Rather, it means that there may be considerations beyond the six statutory
criteria of section 110(i) that are relevant to whether a settlement proposal
is fair, reasonable, appropriate under the facts, and protects the public
interest.” Id. Thus, the Judge erred
in restricting the factual submissions to facts relating to only the section
110(i) criteria.
In
this regard, the Judge erred in discounting that the operator had agreed to
accept all of the citations as written. The Secretary makes a valid point that
the fact that the proposed settlement preserves all of the citations as written
could assist the Secretary in future enforcement efforts against this operator
by ensuring that the paper record reflects the Secretary’s views regarding
gravity and negligence stated in the citations. The Judge improperly rejected
the value of accepting the citations as written on future enforcement actions
as “pure blather.” 39 FMSHRC at 1191.
The
Commission has recognized that “[t]he ‘affirmative duty’ that section 110(k)
places on the Commission and its judges to ‘oversee settlements,’ . . .
necessarily requires the judge to accord due consideration to the entirety of
the proposed settlement package, including both its monetary and nonmonetary
aspects.” Shemwell, 36 FMSHRC 1103 (quoting
Madison Branch Mgmt, 17 FMSHRC 859,
867-68 (June 1995)). Although the Judge appropriately determined that the
submission of additional substantive facts to support the proposed penalty
reductions was necessary,[9] he
erred in not giving any weight to the non-monetary value of accepting the citations
as written.[10]
Third,
after determining that additional facts pertinent to the six statutory criteria
were necessary to support the penalty reduction, the Judge erred by not
permitting the operator to submit those facts. The Judge noted that the
operator’s counsel offered to provide facts to support the settlement motion. 39
FMSHRC at 1188.[11]
However,
there is no requirement that facts supporting a proposed settlement must
necessarily be submitted by the Secretary. Facts supporting a penalty reduction
in a settlement motion may be provided by any party individually or by parties
collectively as long as there is a certification by the filing party that any
non-filing party has consented to the granting of the settlement motion. See 29 C.F.R. § 2700.31(b)(2).
Fourth,
in rejecting the operator’s offer to submit factual support for the proposed settlement,
the Judge stated that the “settlement must express from the Secretary that the
Respondent’s assertions present legitimate
questions of fact which can only be resolved through the hearing process.” 39
FMSHRC at 1188 (emphasis in original); see
also 39 FMSHRC at 1188 (“even if plausible facts were presented and the
Secretary admitted that those facts presented genuine disputes, it would be
highly questionable if . . . each citation ended up with . . . [a] 30%
reduction”); 39 FMSHRC at 1176 (“facts which are in dispute need to be
identified.”).
Facts
alleged in a proposed settlement need not demonstrate a “legitimate” disagreement
that can only be resolved by a hearing. The Commission’s Procedural Rules and
standing precedent do not contain such a requirement. Rather, the Commission
has recognized that parties may submit facts that reflect a mutual position
that the parties have agreed is acceptable to them in lieu of the hearing
process. See Amax Lead Co. of MO, 4
FMSHRC 975, 977-78 (June 1982) (“Inherent in the concept of settlement is that
the parties find and agree upon a mutually acceptable position that resolves
the dispute and obviates the need for further proceedings.”). Put another way,
the facts required by Rule 31 may include a description of an issue on which
the parties have agreed to disagree. The Commission does not require
concessions from parties in settlement as long as the parties provide mutually
acceptable facts that demonstrate the proposed penalty reduction is fair,
reasonable, appropriate under the facts, and protects the public interest.
The
Judge’s requirement for “legitimate” questions of fact or facts that present “genuine”
disputes (39 FMSHRC at 1188) is further flawed in that it appears that the
Judge has assigned probative value to some facts without the benefit of an
evidentiary hearing. We have recognized that, in reviewing information supporting
a reduced penalty in settlement, a Judge “need not make factual findings with
respect to each of the section 110(i) factors as a Judge would in the
assessment of a penalty after hearing.” AmCoal,
38 FMSHRC at 1982. In a final disposition after a hearing, a Judge must make
findings on each section 110(i) factor in assessing a penalty, while a Judge’s
decision approving settlement need only “set forth the reasons for approval
and
. . . be supported by the record.”[12] 29
C.F.R. § 2700.31(g); Cantera Green,
22 FMSHRC 616, 622-26 (May 2000).
Fifth
and finally, the Judge erred in requiring the Secretary to provide an
explanation for the specific numerical percentage reduction of each penalty.[13] The
Judge determined that facts were lacking that would explain “the uniform 30%
reduction for each citation,” and observed that “it would be highly questionable
if, through some magic, each citation ended up with an odds-defying 30%
reduction.” 39 FMSHRC at 1178; 39 FMSHRC at 1188. He reasoned that “a
one-size-fits-all 30% reduction is not likely to be satisfactory because each
violation is fact-specific.” 39 FMSHRC at 1188; see also 39 FMSHRC at 1177 (“the Secretary sets forth this new
justification and again, against all odds, miraculously arrives at . . . a 30%
across-the-board reduction”).
As
the Judge acknowledged (39 FMSHRC at 1188), we have stated that uniform penalty
reductions are not improper per se. AmCoal, 38 FMSHRC at 1985. Although
monetary considerations that relate to section 110(i) factors may be amenable
to explanation about why a particular numerical reduction is appropriate for a
violation, there may be non-monetary considerations that also support
settlement that are not amenable to such precision.
Indeed,
when the Commission considers monetary and non-monetary aspects of a settlement
together, across-the-board penalty reductions may be useful, and consistent
with the Commission’s settlement review standard. Id. at 1982. The Judge’s requirements for precise individual
adjustments for each citation or order would effectively make across-the-board percentage
reductions impermissible de facto in
large settlements involving multiple citations or in global settlements
involving multiple operations or inspections and a voluminous number of
citations. See, e.g., Aracoma Coal Co., 30 FMSHRC 1160 (Dec.
2008) (ALJ), aff’d,
32
FMSHRC 1639 (Dec. 2010) (approving global settlement); Alex Energy, Inc., 39 FMSHRC 1458 (July 2017) (ALJ) (approving
global settlement); Magma Copper Co.
N/K/A BHP Copper, Inc., 1998 WL 433234 (July 1998) (ALJ) (approving an
approximately 50% reduction of 46 penalties).
Given
these errors, we vacate the Judge’s denial and remand for further proceedings. The
Judge shall provide the parties with 30 days to submit facts supporting the
proposed penalty reductions, which may be submitted individually or
collectively pursuant to Commission Procedural Rule 31. Consistent with this
decision, the Judge shall consider the proposed settlement, including monetary and
non-monetary aspects, in determining whether the proposed settlement is fair,
reasonable, appropriate under the facts, and protects the public interest.
III.
Conclusion
For the reasons set forth above, we
vacate the Judge’s denial of the amended proposed settlement. We remand to the
Judge for further submissions and consideration consistent with this decision.
/s/ William I.
Althen
William I.
Althen, Acting Chairman
/s/ Mary Lu
Jordan
Mary Lu Jordan,
Commissioner
/s/ Michael G.
Young
Michael G. Young,
Commissioner
/s/ Robert F.
Cohen, Jr.
Robert F. Cohen,
Jr., Commissioner
[1]
Section
110(k) provides:
No proposed penalty which has been contested before
the Commission under section 105(a) shall be compromised, mitigated, or settled
except with the approval of the Commission. No penalty assessment which has
become a final order of the Commission shall be compromised, mitigated or
settled except with the approval of the court.
30 U.S.C. § 820(k).
[2] See AmCoal, 38 FMSHRC at 1972-73
(Memorandum from Heidi Strassler, Assoc. Solicitor for Mine Safety and Health,
to Regional Solicitors, May 2, 2014).
[3] Prior to the
Secretary’s withdrawal of the appeal, the Commission was informed that the
Department of Justice (“DOJ”) had initiated a process to consider whether it
was appropriate for the Department of Labor to pursue that petition and, if so,
what position the United States should take in the matter. The DOJ requested
the Commission to provide its views on the matter. On January 27, 2017, the
Commission submitted to the DOJ its views, which were consistent with its first
interlocutory decision.
[4] Section 110(i)
provides in part:
In assessing
civil monetary penalties, the Commission shall consider the operator’s history
of previous violations, the appropriateness of such penalty to the size of the
business of the operator charged, whether the operator was negligent, the
effect on the operator’s ability to continue in business, the gravity of the
violation, and the demonstrated good faith of the person charged in attempting
to achieve rapid compliance after notification of a violation.
30 U.S.C. § 820(i).
[5] We have
recognized that the Commission has “the job of determining whether a reduced
penalty in settlement serves the public interest.” AmCoal, 38 FMSHRC at 1983. The Commission’s responsibility for
performing this job is not satisfied by conclusory statements in settlement
motions that reduced penalties “serve the public interest.” See, e.g., Asarco, Inc.,
18
FMSHRC 2081, 2082-84 (Dec. 1996) (denying settlement motion where the parties
merely represented that the settlement was consistent with the statutory
criteria and in the public interest).
[6] It appears that
some Commission Judges have a practice of seeking additional information from
parties when evaluating a proposed settlement, and that this procedure works
effectively. Oral Arg. Tr. 21-22, 31-32, 34-35, 50, 75-76. If a party believes
that a Judge has overstepped his or her authority or otherwise committed an
abuse of discretion in requesting such facts, a party may appeal that matter to
the Commission on an interlocutory basis. See
Solar Sources, Inc., Unpublished Order dated May 16, 2018 (granting
interlocutory review of 39 FMSHRC 2052 (Nov. 2017) (ALJ)).
[7] Indeed, during
oral argument, counsel for the intervenors pointedly reiterated the description
of the Secretary’s and AmCoal’s position in challenging the Commission’s
authority to require factual support of settlement as a “solution . . . in
search of a problem.” Oral Arg. Tr. 55.
[8] The amended
motion to approve settlement provided stipulations of fact relating to three of
the section 110(i) criteria, that is, AmCoal’s history of prior violations,
AmCoal’s size, and the effect on AmCoal’s ability to stay in business. Mot. to
Approve Settlement and Dismiss Proceeding at ¶ 10.
[9] We emphasize
that our conclusion that the Judge appropriately determined that the submission
of additional substantive facts was necessary applies only to the confines of
the instant proceeding.
[10] Commissioner
Cohen asserts that while facts which fall outside the section 110(i) factors
may be relevant, Rule 31(b)(1) also requires the parties to identify
substantive facts that support the penalty agreed to by the parties for each
violation. The Secretary represented here that after a hearing a judge might
reduce the level of negligence or gravity with respect to 14 of the 32
citations, and might vacate another citation because of an undisclosed legal
dispute with the operator, and that in a worst case scenario, the total
penalties might be reduced by approximately 50% using the Part 100 penalty
tables. S. Br. at 4. These representations did not provide the Judge with
sufficient detail to permit the Judge to have an understanding of why the
penalties were being reduced. The Secretary’s boilerplate recitations of having
evaluated the value of the compromise, the prospects of coming out better or
worse after a trial, and “maximizing his prosecutorial impact” add nothing. As
succinctly stated by counsel for the intervenor UMWA, “by requiring the
Secretary to provide some basic justification based on substantive fact, it
creates a record so that interested parties like Congress, like the mine
workers, like the steel workers can observe the process and make sure that we
haven’t reverted to the state of affairs that existed prior to enactment of the
current legislation in section 110(k).” Oral Arg. Tr. 63. By bundling 32
citations into a single proposed settlement and reducing each penalty by the
same percentage, the Secretary seems to be trying to avoid the scrutiny which
Congress has required of the Commission. See
S. Rep. No. 95-181 at 45, Legis. Hist.
at 633.
Commissioner Cohen further notes that
the Commission’s recognition of the importance of substantive facts in a
settlement agreement (and the Secretary’s ability to provide them) is
illustrated by the issuance this day of a decision in another case involving
the denial of a proposed settlement, The Ohio County Coal Co., No. WEVA 2018-0165. In the Ohio
County Coal settlement motion, the Secretary proposed to reduce the penalty
for Citation No. 9090883, a violation of 30 C.F.R. § 75.202(b) caused by a
miner working under unsupported roof, based on a reduction in the level of the
operator’s negligence from “moderate” to “low.” The Secretary explained that
the operator was contending that the violation was caused by an hourly employee
and that it was unaware of the violation, an alleged fact supported by the MSHA
inspector’s notes that the foreman was not present when the violation occurred.
Based on the Secretary’s description of these disputed facts, the Commission in
Ohio County Coal is reversing the Judge and approving the proposed
settlement.
[11] Indeed,
AmCoal’s counsel repeated this offer that the operator was “ready” and
“willing” to provide such facts, including during oral argument before us. Oral
Arg. Tr. 27.
[12] Indeed, in
1980, the Commission amended Rule 31 to delete a requirement that decisions
approving settlement must include a discussion of the section 110(i) criteria
in order “to enhance the flexibility of the judges to approve settlements.” 45
Fed. Reg. 44301, 44302 (1980); see also
Black Beauty, 34 FMSHRC at 1866.
[13] The Judge found
that the uniform percentage reduction for all 32 citations was additionally
problematic because “at least 5 (five) of the citations were specially
assessed.” 39 FMSHRC at 1188. Contrary to the Judge’s finding, the subject
proposed settlement involves no penalties that were specially assessed. The
five specially assessed penalties referred to by the Judge were the subject of
a separate docket, Docket No. LAKE 2011-12. A decision approving settlement in
LAKE 2011-12 was issued by this Judge on September 13, 2013, and became a final
order of the Commission 40 days after its issuance. 30 U.S.C. § 823(d)(1).