Secretary of Labor v. CAM Mining, LLC (ALJ decision, July 30, 2015)

Plain-English summary

A single order against CAM Mining carried a repeated-flagrant designation and a proposed $140,000 penalty. The parties disputed the belt's condition, how long the condition existed, and whether the Secretary's predicate violations were sufficiently similar to support the repeated-flagrant finding. They agreed to remove that designation, treat the violation as a section 104(d)(1) order, and reduce the penalty to $4,000. Judge Jerold Feldman approved the settlement and ordered dismissal after timely payment.

Decision snapshot

• Governing provision: 30 U.S.C. § 820(b)(2)
• Outcome: The repeated-flagrant designation was removed and the order was settled for $4,000.
• Key point: Disputes about duration, condition, and the similarity of predicate violations can support removal of a repeated-flagrant designation in settlement.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania
Avenue, NW, Suite 520N

Washington, DC 20004

SECRETARY OF LABOR

MINE SAFETY AND HEALTH   

ADMINISTRATION (MSHA),

Petitioner,

v.

CAM MINING, LLC,

Respondent.

CIVIL PENALTY PROCEEDING

Docket No. KENT 2009-856

A.C. No. 15-18911-178540

Mine: Mine #28

DECISION
APPROVING SETTLEMENT

AND

ORDER TO PAY

Before: Judge Feldman

The captioned civil penalty
proceeding is before me based upon a petition for assessment of civil penalty filed pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977 (the Act). 30 U.S.C. § 815(d). After this matter was assigned to me on May 17, 2012, further activity in this docket was held in abeyance pending Commission resolution of the novel question of the evidentiary requirements necessary for demonstrating a repeated flagrant violation under section 110(b)(2) of the Act, as amended by the Mine Improvement and New Emergency Response Act of 2006, 30 U.S.C. § 820(b)(2).

The parties have now filed a joint motion
to approve settlement and dismiss this matter. The parties’ agreed-upon settlement terms for the single order at issue, Order No. 8216179, include deleting the 110(b)(2) repeated flagrant designation and reducing the civil penalty from $140,000.00 to $4,000.00. Specifically, the parties agree to delete the flagrant designation because there are disagreements about the condition of the cited belt at the time of the violation, the length of time the cited condition existed, and whether the alleged predicate violations relied on by the Secretary to support a repeated flagrant violation were of sufficiently similar conditions. Having deleted the flagrant designation, the parties agree that the violation should be issued as a 104(d)(1) order.

I have considered the
representations and documentation submitted in this matter and I conclude that the proffered settlement is appropriate under the criteria set forth in Section 110(i) of the Act. WHEREFORE, the motion to approve settlement IS GRANTED, and pursuant to the parties’ agreement, CAM Mining, LLC, IS ORDERED to pay the $4,000.00 civil penalty within 30 days of this Order in satisfaction of the single order at issue.[1] Upon receipt of timely payment, the captioned matter IS DISMISSED. In reaching this conclusion, I have not considered paragraphs three and four of the motion because they are irrelevant.

/s/ Jerold
Feldman

Jerold Feldman

Administrative Law Judge

Distribution:

Mary Sue Taylor, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street, Suite 230, Nashville, TN 37219-2440

Mark E. Heath, Esq., Spilman Thomas & Battle, PLLC, 300 Kanawha Blvd. East, P.O. Box 273, Charleston, WV 25321-0273

/acp

[1]  Payment should be sent to the Mine Safety and Health Administration, U.S. Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. Please include the Docket No. and A.C. No. noted in the above caption on the check.