Dickenson-Russell Coal Company, LLC

Plain-English summary

The Secretary proposed deleting the significant and substantial designation from a citation and reducing its penalty from $971 to $500. Judge Thomas P. McCarthy found that the settlement motion supplied no facts supporting either change, as required by Commission Rule 31. He rejected the motion and set the citation for a merits hearing, with discovery and prehearing submissions required. Dickenson-Russell later paid the penalty and withdrew its contest, and the Commission vacated interlocutory review and remanded for the judge to determine whether the case was moot.

Decision snapshot

• Cited rule: 29 C.F.R. § 2700.31(b)(1)
• Outcome: The settlement motion was rejected and the case was set for hearing.
• Subsequent review: The Commission later vacated interlocutory review and remanded the mootness issue in docket-no-va-2012-397-commission.
• Key point: A settlement that removes an S&S designation and reduces a penalty must provide facts supporting the proposed changes.

Full text (FMSHRC public release)

FOR#2AA

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

October 15, 2012

SECRETARY OF LABOR

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA),

Petitioner

v.

DICKENSON-RUSSELL COAL

COMPANY, LLC,

Respondent

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CIVIL PENALTY PROCEEDING

Docket No. VA 2012-397

A.C. No. 44-06864-286093-01

Mine: Cherokee Mine

ORDER REJECTING SETTLEMENT MOTION

Before: Judge McCarthy

This case is before me upon a Petition for Assessment of Civil Penalty under section
105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). The Secretary
has filed a motion pursuant to Commission Rule 31, 29 C.F.R. § 2700.31, seeking approval of
the proposed settlement.

The Solicitor has requested that Citation No. 8190957 be modified to
delete the significant and substantial designation

and to reduce the proposed penalty from
$971.00 to $500.00.

The motion submitted by the Solicitor, however, fails to predicate the modifications upon
any factual support. Commission Rule 31(b)(1), 29 C.F.R. § 2700.31(b)(1), mandates that for
each violation, the “motion to approve a penalty settlement” must include “facts in support of the
penalty agreed to by the parties.” The Commission has long held that “settlements are committed
to the ‘sound discretion’ of the Commission and its judges” and that judges are not “bound to
endorse all proposed settlements.” See, e.g., Madison Branch Management, 17 FMSHRC 859,
864 (June 1995) (quoting Knox County Stone Co., 3 FMSHRC 2478, 2480 (November 1981)).
In the exercise of such discretion, judges must be provided with enough facts to make a
reasonably informed decision.

The Arlington Solicitor’s Office has long been on notice of the Commission’s
requirements regarding the necessity of providing a factual basis for each and every settlement.
Yet despite clear instruction from both the undersigned and the Commission, the Secretary has
chosen to remain intransigent and has wasted the limited resources of Commission ALJs by
periodically refusing to comply with Rule 31(b)(1). See Rock N Roll Coal Co., 34 FMSHRC 319
(Jan. 2012) (ALJ) (Order Denying Petitioner’s Motion for Reconsideration of Order Rejecting
Settlement); Black Beauty Coal Company, 34 FMSHRC ___, slip op. (LAKE 2008-327, LAKE
2008-590, & LAKE 2009-2240) (Aug. 20, 2012) (unanimously finding that Commission judges
are authorized to require parties to submit factual support necessary for the proper review of
proposed settlements of contested civil penalties).

Most recently, in a civil penalty proceeding before Judge Rae, Docket No. WEVA 2010-1585, the Secretary’s representative at the Arlington Solicitor’s Office similarly refused to
provide a factual basis for the modification of the single citation at issue. Following a conference
call in which Judge Rae ordered the Secretary to file an amended settlement, the Secretary
acquiesced and provided an amended settlement in accordance with the judge’s request. The
Secretary, however, maintained in her proposed settlement order:

It is the Secretary’s position that although Section 110(i) and (k) of the Mine Act
require the Commission and its administrative law judges to review and approve
the penalty aspects of settlements, substantive modifications to citations and
orders are within the prosecutorial and enforcement discretion of the Secretary. 
The Secretary is voluntarily providing additional information in support of her
Motion to Approve Settlement in this case at the request of the administrative law
judge, but preserves her right to argue in other cases that neither the Act nor
applicable legal principles related to the enforcement authority of a government
agency require such information to be provided. 

Proposed Consent Order Approving Settlement at 2, Double Bonus Coal Co., Unpublished
Decision Approving Settlement (Oct. 2, 2012).

Judge Rae and I are not alone in having to needlessly exhaust the resources of the
Commission to address this ongoing problem. The Secretary may not continue to act in blatant
disregard of the Mine Act, Commission Rules, and previous orders unless an appeals court
overturns the well-established principles set forth in the Commission’s Black Beauty decision.
To continue to do so may serve as grounds for referring the Secretary’s representatives to the
Commission for disciplinary proceedings.

In this case, the Settlement Motion fails to provide the required information, inasmuch as
no facts have been provided in support of the S&S modification proposed to justify the penalty
reduction agreed to by the parties. Therefore, the Motion to Approve Settlement is REJECTED.
Pursuant to Commission Rule 51, 29 C.F.R. § 2700.51 a hearing is scheduled for November 15,
2012 under separate cover.

/s/ Thomas P. McCarthy

Thomas P. McCarthy

Administrative Law Judge

Distribution:

A. Scott Hecker, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
22nd Floor West, Arlington, VA 22209-2247

Robert S. Wilson, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
22nd Floor West, Arlington, VA 22209-2247

Cameron S. Bell, Esq., Penn Stuart, P.O. Box 2288, Abingdon, VA 24212

/tjr  

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

SECRETARY OF LABOR

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA),

Petitioner

v.

DICKENSON-RUSSELL COAL

COMPANY, LLC,

Respondent

CIVIL PENALTY PROCEEDING

Docket No. VA 2012-397

A.C. No. 44-06864-286093-01

Mine: Cherokee Mine

NOTICE OF HEARING

AND

ORDER TO FILE PRE-HEARING REPORT

In accordance with Section 105(d) of the Federal Mine Safety and Health Act of 1977,the “Act,” 30 U.S.C. §801, et seq., this case will be heard on November 15, 2012, and
continuing dates after until completed at 12:00 noon local time in Abingdon, Virginia. The
specific hearing site will be designated later.

The proceedings will be conducted pursuant to the Act and 29 C.F.R. § 2700.50, et seq.
The issues are whether Respondent(s) committed the violations alleged in the citation(s), and, if
so, the amount of monetary civil penalties that must be assessed.

Each party shall complete discovery on or before November 5, 2012. Each party shall
file with the undersigned and with one another on or before November 5, 2012, a statement
regarding each of the following items:

1. Whether jurisdiction exists because Respondent was an operator of a mine

as defined in section 3(b) of the Mine Act, 30 U.S.C. § 803(b), and the products

of the subject mine entered the stream of commerce or the operations or products

thereof affected commerce within the meaning and scope of section 4 of the Act,

30 U.S.C. § 803.

2. Facts that are established by admissions in the pleadings or by stipulation of the

parties counsel or representatives.

3. Facts that remain to be litigated at trial.

4. Issues of law that remain to be litigated at trial.

5. Witnesses each party intends to call, their positions, and the substance of their

testimony.

6. List of exhibits each party intends to offer in evidence.

7. Estimate as to probable length of the trial.

Any party requesting subpoenas for the attendance of witnesses or the production of
documents shall file the request at least twenty days prior to the hearing.

Any person planning on attending the hearing who requires special accessibility features
and/or any auxiliary aids (such as sign language interpreters) must request such features and/or
aids sufficiently in advance of the hearing to allow accommodation, subject to the limitations set
forth in 29 C.F.R. §§ 2706.150(a), 2706.160(d).

Thomas P. McCarthy

Administrative Law Judge

Distribution: (Certified Mail & Email)

A. Scott Hecker, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
22nd Floor West, Arlington, VA 22209-2247

Robert S. Wilson, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
22nd Floor West, Arlington, VA 22209-2247

Cameron S. Bell, Esq., Penn Stuart, P.O. Box 2288, Abingdon, VA 24212

Enclosure - Exhibit List

/tjr

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

Petitioner/Complainant/Contestant

v.

Respondent

Docket No.

Hearing Date:

______ EXHIBIT LIST

Petitioner’s/Complainant’s or Respondent’s

Ex. No.

Item Description

Obj.

Adm.

Petitioner’s, Complainant’s or Contestant’s exhibits shall be designated “P-1” or “C-1.” Respondent’s exhibits shall be designated
“R-1". Exhibits shall be numbered seriatim. Courtesy copies of exhibits should be provided to the Judge and opposing counsel.

A. Scott Hecker, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22nd Floor West

Arlington, VA 22209-2247

Robert S. Wilson, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22nd Floor West

Arlington, VA 22209-2247

Cameron S. Bell, Esq.

Penn Stuart

P.O. Box 2288

Abingdon, VA 24212