**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

 

Itis**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:

 

| 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** |           |

 

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 (Trent.David@DOL.GOV) 

 

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

(cpence@hardypence.com)

 

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

(Scott@hardypence.com)

----

[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 *after*Nufac, along with other related mine operators, had agreed to an installmentpayment plan for unpaid penalties incurred for citations issued between May 3, 2014,and May 3, 2019. *See* Press Release, U.S. Dep’t of Justice, U.S. Attorneyfor the Western District of Virginia, United States Announces Civil Settlementto Collect All Debts Owed by Justice Entities for Violations of Federal MineSafety Act (April 1, 2020) https://www.justice.gov/usao-wdva/pr/united-states-announces-civil-settlement-collect-all-debts-owed-justice-entities(last visited July 7, 2023).

[3] Please paypenalties 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. Please includeDocket and A.C. Numbers.