Secretary of Labor v. Nufac Mining Company, Inc.

Plain-English summary

The parties settled five citations issued to Nufac Mining's No. 57 Mine. Three penalties were reduced by roughly half, while two remained unchanged, lowering the table total from $19,574 to $11,684. The judge noted substantial older unpaid penalties and prior noncompliance with an installment plan but approved this settlement because the mine had entered nonproductive status with no employees working in 2023. The payment schedule required five monthly payments of $1,947 and a final payment of $1,949, which also totals $11,684. The order's narrative states $11,648, creating an internal numerical discrepancy with both the table and installment schedule.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 815(d), 820(i), and 820(k)
• Outcome: Settlement of five citations was approved with an installment schedule totaling $11,684.
• Key point: The official order contains a payment-total typo, while the settlement table and specified installments consistently total $11,684.

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, DC 20004-1710

TELEPHONE: 202-434-9900 / FAX: 202-434-9949

|
SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA), Petitioner
v.
NUFAC MINING COMPANY, INC, Respondent |
|
|
CIVIL PENALTY PROCEEDING
Docket No. WEVA 2023-0149 A.C. No. 46-08786-569736
Mine: No. 57 Mine |

ORDER ACCEPTING APPEARANCE

DECISION APPROVING SETTLEMENT

ORDER TO MODIFY

ORDER TO PAY

Before: Judge Sullivan

** ORDERED that the Conference and Litigation Representative (CLR) be
accepted to represent the Secretary in accordance with the notice of limited
appearance he has filed with the penalty petition. Cyprus Emerald Resources
Corporation, 16 FMSHRC 2359 (Nov. 1994).

This case is before me upon petition for assessment of civil penalty under Section 105(d) of the Federal Mine Safety and Health Act of 1977. The Secretary has filed an Amended Motion to Approve Settlement and has set forth the factual basis for the proposed modifications. The Respondent has agreed to the proposed changes. The originally assessed amount for the citations at issue was $19,574.00 and the proposed settlement amount is $11,684.00.

The proposed settlement includes:

The
Petition for Assessment of Civil Penalty filed by the Secretary of Labor on
March 2, 2023, indicates that, as of January 12, 2023, this mine alone had
unpaid penalties of $136,399.37, with delinquent amounts going back as far as
2017. Though it does not go back that far, the Mine Safety and Health
Administration’s Mine Data Retrieval System (“MDRS”) reflects that Nufac still
owes large amounts, with many unpaid penalties shown as delinquent and referred
to the United States Department of the Treasury for collection.[1]

The
MDRS also indicates that some of the unpaid penalties were reduced from the
originally proposed amounts as the result of Commission judges approving joint
motions for settlement in civil penalty proceedings. See, e.g.,
Unpublished Decision Approving Settlement, Nufac Mining Company, Inc.,
No. WEVA 2020-0223 (Apr. 30, 2021) (ALJ). Even when a Judge approved an
installment payment plan (as has been requested here), it appears that Nufac
did not comply with the payment plan. See Unpublished Decision Approving
Settlement, Nufac Mining Company, Inc., Nos. WEVA 2021-0254 & WEVA
2022-0065 (Jan. 21, 2022) (ALJ).[2]

Commission
judges review proposed settlements to ensure that they are “fair, reasonable,
appropriate under the facts, and protect[ive] of the public interest.” Am.
Coal Co., 38 FMSHRC 1972, 1976 (Aug. 2016). I
greatly question whether approving a settlement is consistent with the public
interest when all indications are that it will be years, if ever, before even
the reduced penalty amount is paid. However, here I will forgo denying the
motion for settlement because the mine is presently shown on the MDRS as having
gone into Non-Productive status within the past year, with no employees working
so far in 2023.

The parties have set forth justifications for the modifications in the motion filed by the Secretary. As required by the Mine Act, I have reviewed the motion and penalty criteria and evaluated the proposed settlement pursuant to the requirements set forth in Sections 110(i) and 110(k). The parties agree to the size of this operator, good faith abatement, and the ability to pay. The history of violations has been considered. The negligence and gravity of the violations are addressed in the motion, in the citation, and in the file in general.

I accept the representations
and modifications of the Secretary as set forth in the motion to approve settlement.
I have considered the representations and documentation submitted, find that
the modifications are reasonable, and conclude that the proposed settlement is
appropriate under the criteria set forth in Section 110(i) of the Act. The amended
motion to approve settlement is GRANTED.

It is ORDERED that the
Respondent pay the Secretary of Labor the sum of $11,648.00 over the course of five consecutive monthly payments
of $1,947.00 and one final payment $1,949.00, with the first payment due on August
1, 2023, and each subsequent payment due on the first day of each subsequent
month until the total penalty amount is fully paid. If any payment is more the
15 days delinquent, then the entire remaining balance shall become immediately
due and payable.[3]

/s/
John T. Sullivan

John T. Sullivan

Administrative Law Judge

Distribution (by email):

David C. Trent, Conference Litigation Representative, U.S.
Department of Labor MSHA, 4499 Appalachian Highway, Pineville, WV 24874 ([email protected])

Christopher D. Pence, Hardy Pence PLLC, 10 Hale Street, 4th Floor, Charleston, WV 25329

Scott Wickline, Hardy Pence PLLC, 10 Hale Street, 4th Floor, Charleston, WV 25329

[1] The Court
requested via email that the Secretary confirm the reliability of the
delinquency data on the MDRS, but the Secretary indicated that she would not
respond to the Court’s inquiry.

[2] I further note
that this apparent failure to pay even reduced penalties occurred

[3] Please pay
penalties electronically at

Citation/
Order No. | Originally Proposed Assessment | Settlement Amount | Modifications
---|---|---|---
9568170 | $ 8,095.00 | $ 4,047.00 | Reduce penalty
9568171 | $ 2,641.00 | $ 2,641.00 | No change
9590118 | $ 3,841.00 | $ 1,920.00 | Reduce penalty
9590119 | $ 1,156.00 | $ 1,156.00 | No change
9590120 | $ 3,841.00 | $ 1,920.00 | Reduce penalty
Total | $ 19,574.00 | $ 11,684.00 |