**FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION**

OFFICE OF THE ADMINISTRATIVELAW JUDGE

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

WASHINGTON, DC20004-1710

TELEPHONE: 202-434-9933

FAX: 202-434-9949

 

 
| SECRETARY OF LABOR

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

                        Petitioner

 

                        v.

 

 

 

 

APPALACHIAN RESOURCE WEST  VIRGINIA, LLC,

                        Respondent                                                                      |   |   | CIVIL PENALTY PROCEEDING

 

Docket No. WEVA 2022-0555

A.C. No. 46-08930-560351

 

 

 

 

 

 

Mine: Grapevine South Surface Mine 

  |
|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

 

**DECISION NOW APPROVINGSECRETARY’S MOTION FOR SETTLEMENT**

** **

Before: Judge William Moran

 

This matter remains before the Court upon a petition for assessment ofa civil penalty under section 105(d) of the Federal Mine Safety and Health Actof 1977. On March 1, 2023, the Court denied the Secretary’s Motion for Approvalof settlement for this docket. Thereafter, the Commission’s recent decision in *Perry Cnty**.Res., LLC*, KENT No. 2022-0024 (FMSHRC July 20, 2023), (“*Perry Cnty*”)changed the landscape when a judge is faced with settlement motions for whichthe Secretary refuses to provide a section 104(b) order issued in connectionwith a section 104(a) citation. As described below, the Commission held thatthe Secretary, at least in circumstances presented there, need not supply therecord of the 104(b) order to the Court. 

 

**Procedural Background**

** **

On March 1, 2023, the Court denied the Secretary’s Motion for approvalof settlement. The denial was based upon the Secretary’s refusal to provide twosection 104(b) orders as those orders, while the fact of their issuance waslisted in Exhibit A for the docket, were missing from the record. The Courtnoted that the missing orders were part of the paper issued in connection withCitation Nos. 9567103, and 9567108 for that docket. Though the circumstancesfor this docket are not identical to *Perry Cnty,*the Court extrapolatesthat the Commission would not require the Secretary to provide the (b) ordersin this case either. Therefore, the Court now approves the settlement.

 

 

**The Commission’s decision in *Perry Cnty**.Res., LLC*,**KENT No. 2022-0024, (FMSHRC July 20, 2023) (“*Perry Cnty*”). 

 

The Commission’s decision in *Perry Cnty*heldthat this Court erred in requiring that the section 104(b) order, issued inconnection with a section 104(a) citation in that docket, needed to be suppliedto the Court in the settlement motion for that docket. At its core, theCommission based its decision on two factors: the Secretary’s motion providedsufficient information to satisfy the *AmCoal*[1]**standard; and the Court’s concern thatthe record did not reveal if the Secretary met his obligation to notify theminers’ representatives that the operator failed to abate a violation withinthe specified abatement period was irrelevant to that settlement motion proceeding.

 

          With regard to the firstfactor, the Commission noted that in *AmCoal*it held**“that partiesmay submit factual support consistent with the penalty criteria factors foundin section110(i) of theMineAct,30U.S.C.§820(i),aswellasfactssupportingsettlementthatfall outside of the section 110(i)factors.” *Perry Cnty at 5, citing**AmCoal,*at 1982. Applying thatstandard, the Commission concluded that the Court “erred by denying thesettlement on the basisthat[the judge]wasnotprovidedthesection104(b) failuretoabateorder associatedwithCitation No.9282162.[2]The operator agreed to accept Citation No.9282162 as written and pay the proposed penalty in full.The Judge failed to identify relevant facts that would beprovided by the order that had not already been made a part of the record.” *PerryCnty, Id.*

* *

As to the second factor, the Commission, pertaining towhether “the Secretary met his obligation to notify the miners’ representativesthat the operator failed to abate a violation within the specified abatementperiod” determined that information was “irrelevant to the subject proceeding.”*Id*. at 6.In that regard, itstated “Section 105(b)(1)(A)requires the Secretary to provide noticetoanoperator andtotheminers’representativethattheoperatorhasfailedtotimelyabate a violation and that a penalty willbe proposed under section 110(b) of the Mine Act, 30 U.S.C.§820(b).Here,theSecretaryprovidedfactualinformationthatshedidnotproposeapenaltyin connection with the section 104(b)order.Therefore, theprovisions of section 105(b)(1)(A) do notapply to this proceeding.” *Id.*

 

** **

** **

** **

**About104(b) Orders**[3]****

** **

****The****Mine Act speaks to (b) orders in *two* locations: section 104 andsection 105.  Those sections are independent of one another, but related. First,**under the topic of “Citations and Orders**,” section 104(b) provides:

 

Section 104(b)orders are issued when “upon any follow-up inspection of a coal or other mine,an authorized representative of the Secretary finds (1) that a violationdescribed in a citation issued pursuant to subsection (a) has not been totallyabated within the period of time as originally fixed therein or as subsequentlyextended, and (2) that the period of time for the abatement should not befurther extended, he shall determine the extent of the area affected by theviolation and shall promptly issue an order requiring the operator of such mineor his agent to immediately cause all persons, except those persons referred toin subsection (c), to be withdrawn from, and to be prohibited from entering,such area until an authorized representative of the Secretary determines thatsuch violation has been abated.

 

30 U.S.C. § 814(b)

 

Second, **under the distinct topic of “Procedure for Enforcement**,”section 105(b) provides:

 

[i]f the Secretary has reason to believe that an operator has failed tocorrect a violation for which a citation has been issued within the periodpermitted for its correction, the Secretary shall notify the operator bycertified mail of such failure and of the penalty proposed to be assessed undersection 820(b) of this title by reason of such failure and that the operatorhas 30 days within which to notify the Secretary that he wishes to contest theSecretary’s notification of the proposed assessment of penalty. A copy of suchnotification of the proposed assessment of penalty shall at the same time besent by mail to the representative of the mine employees.  

 

30 U.S.C. § 815 (b)(1)(A). 

            The Commission itself has recognized that section 104(b)orders are not joined at the hip to section 105(b) orders. In *Hopkins CountyCoal* 38 FMSHRC 1317, (June 2016), it upheld a section 104(b) order *withouta single reference to*a section 105(b) order. The importance of a section104(b) order in its own right was emphasized by the Commission, stating: 

 

The purposeof section 104(b) is to spur swift abatement of existing violations and compeloperator compliance with the Act. A “no area affected” order provides animportant *1336 deterrent to operators who fail to abate violations in a timelyfashion. ... The issuance of an order for a failure to abate promotes complianceby imposing a consequence on an operator that refuses to comply with the MineAct. Moreover, penalizing an operator's refusal to comply with the Act in someinstances, while allowing its refusal in others, falls short of fulfilling theAct's purpose. Thus, the Secretary's broad interpretation is consistent with theremedial nature of the Act, its structure, and its progressive enforcementscheme of increasingly severe sanctions that are applied when an operatorincurs repeated violations and refuses to comply.

 

*Id*.at 1335-1336.

 

   So too, in *Hibbing Taconite,*38 FMSHRC 393 (March2016) the Commission spoke to the importance of section 104(b) orders with *noreference*to the other section invoking citations or orders per Section104, namely Sections 105(a) and (b). 

 

While theinspector's concern with exacting immediate corrective action from the operatorin order to keep miners safe is a laudable and important concern, the Mine Actsets forth a scheme in sections 104(a) and (b) by which to achieve that end.The inspector must take enforcement action consistent with those provisions.For instance, the inspector must set an abatement time based upon the amount oftime necessary to fully abate a violation. Thereafter, if the operator does notfully abate within that time, the inspector must determine whether an extensionin abatement time is warranted or whether **he should issue a section 104(b)order**. In making that determination, the inspector may consider informationsuch as whether the operator delayed beginning the abatement process andwhether any delay was justified, giving priority to the safety of minersexposed to the

unabated condition. 

 

*Id*. at 399.

 

The federal courtsof appeals have also discussed section 104(b) orders, independent of, andwithout any reference to, section 105(b) enforcement orders. *See, for*e.g., *Energy West Mining*, 111 F.3d 900, 901-903 (D.C. Cir. 1997).

** **

** **

**Analysis**

** **

            The underlying reasoning for this Court’s denialof the settlement motion in *Perry Cnty*,while, in retrospect, insufficiently stated,[4]was that the Court, miners, and the public, should be privy to thecircumstances which led the MSHA inspector to issue the (b) order. However, inlight of the Commission’s decision in that case, as applied to this case, *AppalachianResource, WV, LLC,*Docket No. WEVA 2022-0555, extrapolating from the Commission’s*Perry Cnty* decision, the Court reaches the conclusion that the Secretaryneed not supply the (b) order in this instance either. The Court does so, eventhough this case is potentially distinguishable[5]from *Perry Cnty*,**because in this instance *there was a civilpenalty discount in spite of the issuance of a (b) order*. In fact, asdescribed below, the penalty discount was a hefty one, at more than a 50%discount in the penalty. The Commission has the availability to invoke *suasponte* review when it wishes.

   While concluding that the settlement motion now must beapproved, some additional thoughts are in order, given that the Commission’sdecision in *Perry Cnty*left the door open to a potentially adequaterationale being presented by a court. (*See* n.3). The Court makes such anattempted rationale here.

 

In this matter, as in *PerryCnty*, Section 104(b) orders were issued; in this instance for two of thecitations in the docket. Those Orders did not occur in a vacuum. Theinspector determined, pursuant to the Citations and Orders provisions insection 104 of the Act that, in connection with those section 104(a) citations heissued, that the time was up, so to speak.  The Orders were issued because hedetermined that the violation had not been totally abated within the period oftime as originally fixed therein or as subsequently extended, and that theperiod of time for the abatement should not be further extended. That is a fact.

 

Given that, it cannot be disputed that the 104(a) citations and theensuing 104(b) orders in this matter were inextricably related. The 104(b)orders did come out of the blue. The orders arose *solely* in connectionwith the section 104(a) citations. Their creation and their viability did notdepend upon taking any enforcement actions under section 105. The (b) orders *weretherefore part of the official record for the two*104(a) citations in thismatter.  

 

This Court, since disabused of the relevance of the (b) order inconnection with the settlement motion, per the Commission’s *Perry Cnty*decision,had thought that as an official document issued in connection with the 104(a)citation, it should be disclosed. The Court thought of the 104(b) order as thelast chapter of the violation, akin to a book, without which inclusion thestory would be missing the final chapter. The life of a 104(a) citation forwhich a 104(b) order is then issued cannot be told without that last chapterrevealed and the Court believed, simply to complete that story, the Court, affectedminers and the public should be able to finish the book, so to speak, withoutfiling a FOIA request.[6]TheCommission’s *Perry Cnty*decision determinedthat this Court was wrong about that.[7] They heldthat, as the penalty was paid in full for CitationNo. 9282162, there was no basis for the Court to learn of thecontent or circumstances of the (b) order. 

 

**Resolutionof the Settlement Motion in this matter**

** **

**The (b)orders in this case were derived from Citation Nos. 9567103 and 9567108**

** **

****OnJune 13, 2022, MSHA Inspector Melvin Keith Wolford issued a section 104(a) citation, **Citation No.****9567103.**30 C.F.R. §77.1606(c) was cited. Titled“Loading and haulage equipment; inspection and maintenance,” that standard providesin subsection (c) that “**Equipment defects affecting safety shall becorrected before the equipment is used**.”  The settlement notes that theviolation has been admitted. 

 

In the****Condition or Practice section of his citation, theInspector listed the following **eleven (11) defects** on the cited loader: 

 

**DEFECTSAFFECTINGSAFETYARE NOT BEING CORRECTEDON THE CAT 992GLOADER,CO. NO.001,PRIORTO PLACIINGIT INTO SERVICE.WHEN CHECKED,THE FOLLOWINGDEFECTSWERE OBSERVED.**

**1.****THETOPCENTERPINPLATEHAS2OF6RETAININGBOLTSBROKEOUT.**

**2.****THECENTERSECTIONISOILSOAKEDFROMHYDRAULICOILLEAKS.**

**3.****THEREARAXLEAREAISOILSOAKED.**

**4.****THEREARBRAKEVALVEANDHOSESAREOILSOAKED.**

**5.****THEGLASSFORTHEEMERGENCYEXITWINDOWLATCHNEEDSADJUSTED.THEWINDOWDOESNOTPULLUP TIGHTTOTHEWINDOWSEALTOPREVENTUNFILTERED DUSTFROMENTERINGTHECAB.**

6.**THECATAGORY2AND3WARNINGLIGHTSARESTAYINGILLUMINATED ANDMINERSARETAPINGOVER THEM SOTHEY****CANTSEETHE LIGHTS FLASH**.

**7.****THEREARESEVERALTROUBLECODESSTAYINGONTHEDISPLAYALLTHETIMEWHILETHELOADERIS RUNNING THATS KEEPING THELIGHTSON.**

**8.****THELEFTFRONTWIPERWILLWORKINTERMITTENLY.ITWILL COMEONONETIMEITSCHECKEDANDNOT WORK THE NEXT.**

**9.****THE****RIGHT****SIDESTEERING****JACK****HASEXCESSIVESLACK****/SLO****PINTHEREAR****P****I****N****FIT_**

**10.****THEBUCKET****TILTCYL****IND****ERHASEXCESSIVE****AMOUNTS****OF****OIL****LEAK****IN****G****OU****TAROUNDTHE****STEM****SEAL.**

**11.****THEHYDRA****UL****IC****OIL****TANKHAS****EXCESSIVE****AMOUNT****OFOILLEAKING.****THEBOT****TOM****OF****THETANK****ISOIL SOAKED WITH****DRIPS.**

**FAILURE****TOCORRECT****THECITED****CONDIT****IO****NSEXPOSESTWO****OPERATORS****TO****THE****HAZAR****D****S10HOURSEACH SHIFT****6 DAY**

**S A****WEEK.**

**THELOADER****WASREMOVED****FROM****SERVICE.**

** **

**Standard77.1606(c)wascited68times****intwo****y****ears****atmine****4608****930****(67to****the****operator,****1to****a****con****tr****actor)****.**

** **

**Petition for civil penalty at 13 (emphasisadded).**

 

**Citation No.9567103**was assessed, under what the Secretary describes in Part 100,Criteria and Procedures for Proposed Assessment of Civil Penalties, as“Determination of penalty amount; **regular assessment.**”****30 C.F.R.§100.3 (emphasis added). The amount assessed was $626.00. Understandably, the10% good faith reduction was not applied, as the Inspector issued a section 104(b) order upon determining that the violationwas not totally abated within time allowed. The citation is to be paid in full.Motion at 2. 

 

Two days later, on June 15, 2022, the same inspector issued section104(a) **Citation No. 9567108**. In that instance, the same standard,equipment defects affecting safety, was cited as in Citation No. 9567103; 30C.F.R. §77.1606(c). This time, not 11 (eleven) defects were identified, **butrather 19 (nineteen) defects were listed in the citation.**The motionproposed to reduce the regular assessment for that Citation by **54% (fifty-four percent)****, from $4,624.00 to$2,124.00.**In arriving at the *regular* assessment of $4,624.00, the10% ‘good faith’ reduction was not applied in this instance either, anunderstandable decision given that, as with **Citation No. 9567103,**theissuing inspector also issued a section 104(b) order, upon determining that theviolation was not totally abated within time allowed. 

 

 

 

In the****Condition or Practice section for this citation, theInspector listed the following: 

**DEFECTSAFFECTINGSAFETYARENOTBE****I****NGCORRECTEDON****THECAT785D****TRUCK,****CO.****NO.111,****PRIOR****TO PLACING****IT****IN****TO****SERV****ICE****.    WHENCHECKED,THEFOLLOWING****DE****FECTS****WEREOBS****ERVED.**

 

**1. ****THELEFTSIDEREARINSIDETIREHASLARGEPATCHESOFTREADTORNOFFTHETIRE.   THEMETAL CORDSARESEVEREDANDSTICKINGOUTOFTHETIRE.**

**2.****THEHYDRAULICOILTANKISOILSOAKEDFROMLEAKSONTHETOPANDSIDEOFIT.**

**3.****THERIGHTFRONTWHEELASSEMBLYHASASTUDANDNUTMISSINGTHATHOLDSTHEWHEELON.**

**4.****THECABSIDEMUDFLAPUNDERTHEDOORISMISSINGALLOWINGMUDTOBEFLUNGONTHEWALKWAYANDMIRROR.**

**5.****THELEFTSIDESTEERINGJACKISLEAKINGOILOUTOFTHERODENDSEALONTHEJACK.**

**6.****THERIGHTSIDESTEERINGJACKISLEAKINGOILOUTOFTHERODENDSEALONTHEJACK.**

**7.****THELOWERFUELTANKMOUNTISDAMAGED.TWOOFTHEMOUNTINGBOLTSAREMISSINGTHEMOUNTINGNUTSANDTHEBOLTSAREPULLINGOUTOFTHEBRACKET.**

**8.****THERIGHTSIDEUPPERFRAMEHORNTHATSUPPORTSTHEUPPERDECKISCRACKED4INCHESORSOON THE FRONTRIGHTCORNERABOVETHEHOSES.**

**9.****THERIGHTFRONTBRAKEOILCOOLERHOSESAREOILSOAKEDANDLEAKINGOIL.**

**10.        ****THERIGHTFRONTBRAKECOOLERHOSEMANIFOLDISLEAKINGOIL.**

**11.        ****THE BRAKE VAVLE, LOCATEDINSIDETHE LEFT FRAME RAIL BELOW THE CAB IS OIL SOAKED AND LEAKING OIL TO THE GROUND.**

**12.        ****THEBACKOFTHEFUELTANKISLEAKINGFUELTOTHEGROUND.**

**13.****THE WIPERARM LINKAGEIS WORN EXCESSIVE AND ALLOWING THE WIPER ARM AND BLADE TO GO OFF THE GLASSACROSS THE RUBBERSEAL AND WILLDAMAGE THE WIPERIF LEFTUNCORRECTED.THE ARM NEEDS REPLACEDOR ADJUSTED.**

**14.****THEDOMELIGHTDOESNOTWORKINSIDETHECAB.**

**15.****THE****PORCH****LIGHT****DOES****NOT****WORK****TO****PROVIDE****ILLUMINATIONAROUNDTHEDECKAREA.**

**16.****THE****D****IGIT****ALGEAR****I****NDICATOR****THAT****TELLS****I****FYOUARE****IN****FORWARD,****REVERSE,NUTERAL E****T****C.AND****WHAT****GEAR YOU****ARE****INDOES****NOT****WORK.**

**17.****THE****CATAGORY2WARNING****LIGHT****IS****TAPPED****OVERWITHBLACKTAPE.**

**18.****THE****TRUCKSMONITORSCREEN****IS****KEEPING****SEVERALCODES****FLASHING****THAT****CAUSED****THECAT****2LIGHT****TO****STAYONALL****THETIME****ANDMINERSTO****TAPE****THEM OVER.**

**19.****THE****ROCKPROTECTORTHAT****STICKS****OUTABOVETHECABTOPROTECTMINERSFROM****ROCKS****FALLINGOFF**

**THE****BED****ONTOTHECAB****IS****NOT****WELD****ED****/ATTACHED****GOOD****AND****STURDY.****IT****LOOKS****T****OBETACKED****INTO****PLACE/MOCKED UP****BUTWAS****NEVER WELDED****TO****BEAPERMANENTFIXTURE.**

**THIS****TRUCK****ISUSEDON****STEEPGRADES,ELEVATED****ROADWAYS,INCONGESTED****AREAS,AND****AT****TIMES****NEAR**

**FOOT****TRAFFIC.FAILURE****TO****CORRECT****THE****CITED CONDITIONS****PRIOR****TO****PLACINGIT****INTO SERVICE****EXPOSES****THE****DRIVERS****TO****SERIOUS****HAZARDS.****THE TRUCK****WAS REMOVED FROMSERVICE UNT****I****L****THE****CITED****CONDITIONS****ARE****CORRECTED.**

**Standard****77.1606(c)****was cited****70****timesin****two****yearsatmine4608930****(69****to****the****operator,****1****to a contractor)**.

Petition for civil penalty at 17-18.

 

Presented as support for the **54%(fifty-four percent) reduction in the penalty,**the Motion, employing aneconomy of words, stated: 

 

Citation #9567108 will remain as issuedwith a reduction in penalty. The Respondent contends that the gravity of thecitation was over-evaluated and should not have been issued as “reasonablylikely” and “S&S”. Respondent would argue athearing that there were no operational issues with the steering or brakes.Additionally, the tire at issue is a 58 ply tire and only 2 plies were damaged.The Secretary recognizes that the ALJ may find merit in the facts andarguments presented by the Respondent and in light of the contested evidenceand given the uncertainties of litigation, the Secretary has agreed to reducethe penalty for Citation #9567108 from $4,624 to $2,124, and the Respondent hasagreed to pay the reduced penalty. If this citation had been issued at unlikelyand non S&S, the penalty per 30 CFR part 100.3 would have been $934.00. 

 

Motion at 3-4

Accordingly,the Secretary took the incongruous position that he/she was standing by theinspector’s evaluation in all respects but agreeing to reduce the penalty bymore than half from the proposed regular assessment. To arrive at thatconclusion, the Secretary posits that *the Court*, but with the Secretary completelyabstaining as to its own view, may find merit in the Respondent’s assertion thatan injury is ‘not reasonably likely’ to occur. 

 

            On this record, the Court does not buyinto that claim, not with operational issues identified on this 550,000lb/155-ton payload mining truck[8] such as thegear indicator not indicating the gear position, the multiple leaking oilfluids from: the hydraulic oil tank, the left and right side steering jack, thebrake oil cooler hoses, and the brake valve, not to mention the fuel tankleaking fuel. An indication that the mine was ignoring obvious problems, thecategory 2 warning light had been taped over.[9]And further, the Court does not buy into the claim that it may find meritthat an accident was not reasonably likely to occur, when considered with theunchallenged facts in the citation that the truck was being used on steepgrades, along elevated roadways, in congested areas and at times near foottraffic, all of which led the issuing inspector to conclude that failure tocorrect the cited conditions exposed the driver to serious hazards which werereasonably likely to occur. 

 

**Approval of the settlement motion; application of theCommission’s decisions in *Perry Cnty and AmCoal***

** **

 TheCourt is not permitted to make reasonable inquiry about the contentionsadvanced in settlement motions. This is because, under the Commission’sinterpretation of section 110(k) of the Mine Act, Congress only intended thatthe three elements as laid out in *The American Coal Co.*, 40FMSHRC 983 (Aug. 2018) (“*AmCoal*”) and *Rockwell Mining, LLC*, 40FMSHRC 994 (Aug. 2018) need be considered under theCommission’s standard for review of settlement submissions. The settlementmotion does not require more information from the Secretary. 

 

Per theCommission’s decisions in *AmCoal* and *Rockwell Mining*, to approvea settlement motion there are three requirements. As set forth below, meetingthe first two requirements are automatic and perfunctory.

 

(1)  **The motionmust state the penalty proposed by the Secretary**. 

 

This requirement is met in every civil penalty petition, as the petitioncontains the proposed penalty. The amount is rarely, if ever, an issue, and ifin issue, it is resolved before the penalty petition is filed.

 

(2)  **The amount ofthe penalty agreed to in settlement**.

** **

This requirement is also automatic; there could not be a settlementmotion without the parties stating the penalty amount to which they haveagreed.

 

(3)  **“Facts,” asthe Commission has employed that term, in support of the penalty agreed to bythe parties**.

** **

            In the context of settlementmotions, “facts” have an atypical meaning.[10]In discussing what constitute “facts” for settlements, the Commissionstated “there is no requirement that facts supporting a proposed settlementmust necessarily be submitted by the Secretary. Facts supporting a penaltyreduction in a settlement motion may be provided by any party individually orby parties collectively.” *AmCoal*at 990. The only associated requirementwith such*“facts”*is that*“there is a certification by the filingparty that any non-filing party has consented to the granting of the settlementmotion.*” *Id.* (emphasis added).

The Commission rejectedthe view that a respondent’s assertions of fact need to “present legitimatequestions of fact,” and further that the Secretary need not comment yea or nayto the facts asserted by a respondent. Instead, the Commission announced that“[f]acts alleged in a proposed settlement need not demonstrate a ‘legitimate’disagreement that can only be resolved by a hearing.” Instead, the Commissionallows that parties may submit facts that reflect a mutual position that theparties have agreed is acceptable to them . . .” *Id.*

Accordingly, per the Commission’sdecisions on the scope of a judge’s review authority of settlements, the“information” presented in this settlement motion issufficient for approval.[11]

**The settlement terms are summarized inthe following table:**
| **Citation  No.**              | **Originally  Proposed Assessment** | **Settlement  Amount** | **Modification**                       |
|---------------------------------|--------------------------------------|-------------------------|----------------------------------------|
| **Docket  No. WEVA 2022-0555** |
| **9565193**                     | **$3,546.00**                        | **$1,771.00**           | **50  % Reduction in Penalty**        |
| **9565194**                     | **$716.00**                          | **$716.00**             | **Sustained  as Issued**              |
| **9567103**                     | **$626.00**                          | **$626.00**             | **Sustained  as Issued**              |
| **9567109**                     | **$1,156.00**                        | **$1,156.00**           | **Sustained  as Issued**              |
| **9567108**                     | **$4,624.00**                        | **$2,124.00**           | **54%  Reduction in Penalty**         |
| **9567119**                     | **$774.00**                          | **$774.00**             | **Sustained  as Issued**              |
| **9567120**                     | **$1,156.00**                        | **$1,156.00**           | **Sustained  as Issued**              |
| **9567122**                     | **$840.00**                          | **$840.00**             | **Sustained  as Issued**              |
| **9567123**                     | **$716.00**                          | **$716.00**             | **Sustained  as Issued**              |
| **9567126**                     | **$1,593.00**                        | **$1,116.00**           | **30%  Reduction in Penalty**         |
| **9567130**                     | **$3,546.00**                        | **$1,546.00**           | **56%  Reduction in Penalty**         |
| **TOTAL**                       | **$19,293.00**                       | **$12,541.00**          | **35%  overall reduction in penalty** |

** **

**Summary**

****Apart from anyconsideration of the Secretary’s enforcement authority under Section 105 of theMine Act, the Court takes note that the Commission has concluded that, at leastin the context of settlement motions, the **104(b)** order paper issued aspart of the official actions taken by a mine inspector upon determining that nofurther extensions should be granted for abatement of a section 104(a)citation, may not be viewed by the Court, miners or the public.[12]

            That said, the Court must anddoes respect the Commission’s decisions in *Perry Cnty*on the issue ofdisclosure of the 104(b) orders which were issued in this case. In addition,the Court adheres to Commission case law and approves the Secretary’s Motion forsettlement but **solely on the basis of the Commission’s decisions in***TheAmerican Coal Co*., 40 FMSHRC 983 (Aug. 2018) and *Rockwell Mining, LLC*,40 FMSHRC 994 (Aug. 2018) for the standard to be applied by Commissionadministrative law judges when reviewing such settlement motions under theCommission’s interpretation of section 110(k) of the Mine Act. Per theCommission’s decisions on the scope of a judge’s review authority ofsettlements, the “information” presented in this settlement motion issufficient for approval. 

            It is**ORDERED**that the operator pay a penalty of **$12,541.00** within 30 days of thisorder.[13]Upon receipt of payment, this case is **DISMISSED**.

 

 

 

 

/s/ William B. Moran

                                                                      WilliamB. Moran

                                                                      AdministrativeLaw Judge

 

 

Distribution:

 

Emily TolerScott, Counsel for Appellate Litigation, U.S. Department of Labor 

Office ofthe Solicitor, Division of Mine Safety & Health, 201 12th Street South,Suite 401 

Arlington,VA 22202 scott.emily.t@dol.gov

 

K. Brad Oakley, Esq., Jackson Kelly PLLC, 100 W. MainStreet, Suite 700

Lexington KY 40507 kboakley@jacksonkelly.com

 

David C.Trent, Conference & Litigation Representative, U.S. Department of Labor,MSHA 

499Appalachian Highway, Pineville WV 24874 Trent.david@dol.gov

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[1]*American Coal Co.*, 38 FMSHRC 1972, (Aug.2016)

[2]The Commission did *not*reach “the question of whether a section104(b) order issued for a failuretoabateacontested citation mayever appropriately besought byaJudgetofurtherthe Judge’s *AmCoal I*analysis or whether it constitutes prohibitedevidentiary documentation, we findtheJudge’srequestwasinappropriateinthiscase.TheJudgefailedtoidentifyarationalefor requiringthe order, consideringthat theoperator accepted the contested citation as written and agreed to paythe proposed penalty in full.” *Perry Cnty*at n.3. Accordingly,identification of a rationale, if deemed sufficient, would be considered by theCommission. 

 

[3]Withdrawal ordershave been a safety tool as far back as 1952, with the House Report on thePrevention of Major Disasters in Coal Mines H.R. Rep. No. 82-2368 at LegisHistory at 62, 72. (1952). The Federal Coal Mine Health and Safety Act of 1969followed suit. S.Rep. No. 91-411, at 90 (1969), *reprintedin*Senate Subcomm. on Labor, Comm. on Human Res., Part I *LegislativeHistory of the**FederalCoal Mine Health and Safety Act of 1969*, at 216 (1975). So too, in a Senate Reportregarding the 1977 Mine Act, it noted that “Inspectors are also authorized toissue similar closure or withdrawal orders where the violation previously"noted" has not been abated within the time prescribed for suchabatement. S.Rep. No. 95-181, at 5 (1977), *reprinted in* Senate Subcomm. on Labor,Comm. on Human Res., *Legislative History of the Federal Mine Safety andHealth Act of 1977*, at 593 (1978). Thus, withdrawal orders have a life oftheir own; they are not inextricably tied to a penalty under section 105. 

 

[4]As noted, in *Perry Cnty*, the Commission held that “*theJudge failed to identify **a rationale** for requiring the order*,considering that the operator accepted the contested citation as written andagreed to pay the proposed penalty in full.” *Perry Cnty*at 5-6, n..3(emphasis added). 

 

[5]See note 3, above,as the proposed regularly assessed penalty *was not paid in full*here. 

[6]An aside,reflecting the inherent importance of 104 (b) orders, it is noted that, per 15U.S.C. 78m-2, there is a reporting requirement under the Securities ExchangeAct that each coal or other mine must file the total number of orders issuedunder section 104(b) of such Act (30 U.S.C. 814(b)), among other periodicreporting requirements such as the total number of S&S violations. 

 

[7]The Court agreesthat it was incorrect in tying any section 105(b) order to the issuance of asection 104(a) citation. As noted above, the two exist independently, with asection 104(b) order being part of the record associated with a section 104(a)citation and a section 105 (b) order being a separate enforcement decision. In *PerryCnty*,**andagain in this matter, the Secretary has apparently decided not pursueenforcement actions under section 105(b). 

[8]https://www.cat.com/en_MX/products/new/equipment/off-highway-trucks/mining-trucks/18089285.html

 

[9]“Caterpillarwarning lights, symbols and meanings are important for operating machinerysafely. Caterpillars have a range of warning lights on their machines thatindicate when something is wrong with the machine or its components, such aslow oil pressure, overheating engine temperature and other problems.” https://warninglightsoncar.com/caterpillar-warning-light/ As noted, theCourt is not permitted in the context of settlement motions to ask questionsabout such matters.

 

 

[10]Insettlements, “facts” do not mean things that areknown or proved to be true, nor does the term mean something that has actualexistence or a piece of information presented as having objective reality. *Fact*,Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/fact(accessed Nov. 18, 2021). Accordingly, insettlements, a fact does not mean something that is true, nor is there arequirement that a statement of fact be verifiable.

 

[11]Itshould not come as a surprise that, under the Commission’s *AmCoal*testfor review of settlements, all such motions are approved. In the rare instanceswhere a judge has denied a settlement motion, post-*AmCoal*, thosedecisions have met with reversals by the Commission. *Hopedale Mining*, 42FMSHRC 589 (Aug. 2020), *American Aggregates*, 42 FMSHRC 570 (Aug. 2020)(Chairman Traynor and Commissioner Jordan, dissenting).

[12]As noted, miners,the public and safety advocates may obtain the section 104(b) orders through aFreedom of Information Act request. 

 

 

13.Penalties may be paid electronically at Pay.Gov, a service of the U.S.Department of the Treasury, at https://www.pay.gov/public/form/start/67564508.Alternatively, send payment (check or money order) to: U.S. Department ofTreasury, Mine Safety and Health Administration, P.O. Box 790390, St. Louis, MO63179-0390. It is vital to include Docket and A.C. Numbers when remittingpayments.