Rock n Roll Coal Company, Inc. (ALJ decision, December 20, 2011)

Plain-English summary

The Secretary and Rock n Roll Coal proposed changing a citation from section 104(d)(1) to section 104(a), reducing negligence from high to moderate, and lowering the penalty from $13,609 to $3,690. Judge Thomas P. McCarthy found that the motion provided no facts supporting those changes or the penalty reduction. Because Commission Rule 31 requires supporting facts sufficient for an informed settlement review, he rejected the motion. The Secretary was given 15 days to submit an amended motion, after which the case could be set for hearing.

Decision snapshot

• Governing provision: 29 C.F.R. § 2700.31(b)(1)
• Outcome: The proposed settlement was rejected without prejudice to a fact-supported amended motion within 15 days.
• Key point: A settlement motion must give the judge enough case-specific facts to evaluate proposed citation changes and penalty reductions.

Full text (FMSHRC public release)

FMSRHC ALJ DECISION

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE, NW, SUITE 9500

WASHINGTON, DC 20001-2021

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

December 20, 2011

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Petitioner

v.

ROCK N ROLL COAL COMPANY,
INC.,

Respondent

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CIVIL PENALTY PROCEEDINGS

Docket No. WEVA 2011-862

A.C. No. 46-08646-241826-01

Mine: Mine No. 3

ORDER REJECTING SETTLEMENT MOTION

Before: Judge McCarthy

This case is before me upon a petition for assessment of a civil penalty under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). The parties have settled the matter and 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. 8093045 be modified to change the classification of the citation from a 104(d)(1) citation to a 104(a) citation and to reduce the level of negligence from “high” to “moderate.” The modifications are accompanied with a reduction in the penalty from $13,609.00 to
$3,690.00.

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.

In this case, the Settlement Motion fails to provide the required information, inasmuch as no facts have been provided in support of the proposed penalty reduction agreed to by the parties. Therefore, the Motion is REJECTED. The Secretary may submit an Amended Motion containing the required information within fifteen days of receipt of this order for my consideration. Otherwise, this case will be set for hearing pursuant to Commission Rule 51, 29 C.F.R. § 2700.51.

/s/ Thomas P. McCarthy

Thomas P. McCarthy

Administrative Law Judge

Distribution:

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

James F. Bowman, Rock N Roll Coal Company, Inc., P.O. Box 99, Midway, WV 25878

/tjr