Secretary of Labor v. Excel Mining, LLC

Plain-English summary

Excel Mining and the Secretary resolved three training and accident-reporting violations on the scheduled hearing date. The original proposed penalties totaled $12,143, and the parties agreed to $10,500 after placing their terms and supporting reasons on the record. Judge Alan G. Paez found the settlement reasonable and in the public interest. The agreement changed Citation No. 8265645's likelihood finding to highly likely and converted Order No. 8268749 to a section 104(a) citation. Excel was ordered to pay the settlement within 30 days.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 48.7(a)(3), 50.10(b), and 50.12
• Outcome: Three violations were settled for $10,500, with one gravity modification and one order converted to a section 104(a) citation.
• Key point: A settlement may modify both penalty amounts and citation findings when the parties provide a reasoned basis and the result serves the public interest.

Full text (FMSHRC public release)

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 

SECRETARY OF LABOR,

:   CIVIL PENALTY PROCEEDINGS

MINE SAFETY AND HEALTH

:

ADMINISTRATION (MSHA),

:   Docket No. KENT 2012-952

Petitioner,

:   A.C. No. 15-08079-284662-01

:

v.

EXCEL MINING, LLC,

Respondent.

:   Docket No. KENT 2012-953

: A.C. No. 15-08079-284662-02

:

: Mine: Mine No. 3

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:

Gravity

Citation/Order No.

Standard

Likelihood

Severity

S&S

Number of
Persons
Affected

Negligence

Type of
Action

KENT 2012-952

8265645

N/A

To “Highly
Likely”

N/A

N/A

N/A

N/A

N/A

KENT 2012-953

8268749

N/A

N/A

N/A

N/A

N/A

N/A

To “104(a)
Citation”

/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