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

 March 31, 2020

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA),

 Petitioner

v.

THE HARRISON COUNTY COAL

 COMPANY,

 Respondent

CIVIL PENALTY PROCEEDING

Docket No. WEVA 2020-0203

A.C. No. 46-01318-505388

Mine: Harrison County Mine

ORDER ACCEPTING APPEARANCE

DECISION APPROVING SETTLEMENT

ORDER TO MODIFY

ORDER TO PAY

Before: Judge McCarthy

This case is before the undersigned upon a 101-citation Petition for the Assessment of 

Civil Penalty under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 815(d). This docket was created prior to the policy of splitting dockets with excessive amounts 

of citations. Under the current policy, this docket would not have been accepted in its current, 

voluminous state.

The Secretary of Labor’s Conference and Litigation Representative (“CLR”) filed a 

notice of limited appearance with the penalty petition. It is ORDERED that the CLR be 

accepted to represent the Secretary. Cyprus Emerald Res. Corp., 16 FMSHRC 2359 (Nov. 

1994).

The CLR has filed a motion to approve settlement proposing a reduction in the penalties 

from $59,978.00 to $58,109.00. The CLR states that Citations No. 9185453, 9186421, and 

9187211 have been vacated. The Secretary’s discretion to vacate a citation or order is not 

subject to review. E.g., RBK Constr. Inc., 15 FMSHRC 2099 (Oct. 1993). Citation No. 9186521 

remains unchanged, but the CLR justifies the reduction in penalty by stating there is a legitimate 

factual and legal dispute regarding gravity and negligence. The CLR also requests that Citation 

No. 9186420 be modified to reduce the level of negligence from moderate to low.

The Respondent’s parent company, Murray Energy Holdings Co., filed for Chapter 11 

Bankruptcy Protection on October 29, 2019, in the United States Bankruptcy Court for the 

Southern District of Ohio, In re Murray Energy Holdings Co., Case No. 19-56885. As stated in 
2

the settlement motion, some of the citations in this docket are subject to the bankruptcy 

proceeding, while other citations are not. As stated below, the Respondent will pay the citations 

in accordance with terms of the settlement agreement.

Section 362(a) of the Bankruptcy Code provides for an automatic stay of the 

commencement or continuation of any administrative or judicial proceedings against a Chapter 

11 Bankruptcy petitioner. 11 U.S.C. § 362(a). An exception to this stay, however, is granted by 

§362(b)(4), which exempts from the automatic stay any proceeding by a governmental unit to 

enforce its police or regulatory power. 11 U.S.C. §362(b)(4). This exception has been applied to 

cases seeking equitable relief and cases concerning monetary damages or penalties. See In re 

Commerce Oil Co., 847 F.2d 291, 297 (6th Cir. 1988); United States v. Nicolet, Inc., 857 F.2d 

202, 208-10 (3d Cir. 1988); U.S. v. Oil Transport Co., Inc., 172 B.R. 834 (Bankr. E.D. La. 

1994); U.S. v. Energy Intern,, Inc., 19 B.R. 1020 (Bankr. S.D. Ohio 1981) (holding that action by 

the United States to collect a civil penalty assessed by the Department of the Interior, Office of 

Surface Mining, against debtor, for numerous violations of Surface Mining Control and 

Reclamation Act of 1977, was one to enforce its regulatory power and thus not stayed by the 

debtor's filing of a bankruptcy petition)). 

The Commission has held that the Secretary of Labor, Department of Labor, and MSHA 

are “government units” within the meaning of 362(b)(4), as the Secretary of Labor brings civil 

penalty proceedings in an effort to effectuate and enforce the mandatory safety standards of the 

Mine Act. Big Laurel Mining Corp., 37 FMSHRC 1997, 1997-99 (Sept. 2015); Hidden 

Splendor Res., Inc., 35 FMSHRC 1548, 1549-50 (June 2013); Hoist Excavating, Inc. ̧17 

FMSHRC 101, 102 (Feb. 1995); Jim Walter Res., Inc., 12 FMSHRC 1521, 1530 (Aug. 1990). 

Although the entry of a money judgment by a governmental unit, if related to its police or 

regulatory powers, is not affected by the automatic stay, actual enforcement of such judgment 

must take place through the bankruptcy court. In re Weller, 189 B.R. 467, 471 (Bankr. E.D. Wis. 

1995); NLRB v. Continental Hagen Corp., 932 F.2d 828, 834 (9th Cir.1991); NLRB v. P.I.E. 

Nationwide, Inc., 923 F.2d 506 (7th Cir.1991); Eddleman v. U.S. Dept. of Labor, 923 F.2d 782 

(10th Cir.1991); In re Tauscher, 7 B.R. 918 (Bankr. E.D. Wis. 1981).

The undersigned considered the representations and documentation submitted in this 

case, and the undersigned concludes that the proffered settlement is fair, reasonable, appropriate 

under the facts, and protects the public interest under The American Coal Co., 38 FMSHRC 

1972, 1976 (Aug. 2016), and is appropriate under the criteria set forth in § 110(i) of the Act. The 

settlement amounts are as follows:
3

Citation No. Assessment Settlement Citation No. Assessment Settlement

9185453 $654.00 $0.00 9185713 $344.00 $344.00

9185454 $514.00 $514.00 9185714 $2,550.00 $2,550.00

9185455 $514.00 $514.00 9185715 $121.00 $121.00

9185456 $405.00 $405.00 9186425 $154.00 $154.00

9185457 $230.00 $230.00 9186426 $558.00 $558.00

9185979 $372.00 $372.00 9186427 $319.00 $319.00

9185458 $214.00 $214.00 9186428 $121.00 $121.00

9185459 $214.00 $214.00 9186429 $250.00 $250.00

9185706 $250.00 $250.00 9186430 $1,345.00 $1,345.00

9186408 $604.00 $604.00 9189333 $154.00 $154.00

9186409 $372.00 $372.00 9189334 $474.00 $474.00

9186410 $405.00 $405.00 9186431 $604.00 $604.00

9186411 $121.00 $121.00 9189336 $121.00 $121.00

9186412 $142.00 $142.00 9185716 $214.00 $214.00

9186413 $558.00 $558.00 9186434 $2,993.00 $2,993.00

9189323 $474.00 $474.00 9186435 $2,353.00 $2,353.00

9185707 $121.00 $121.00 9186436 $344.00 $344.00

9186414 $121.00 $121.00 9186437 $121.00 $121.00

9186415 $474.00 $474.00 9186438 $474.00 $474.00

9186416 $474.00 $474.00 9186439 $474.00 $474.00

9186417 $250.00 $250.00 9185717 $181.00 $181.00

9186418 $1,852.00 $1,852.00 9185718 $214.00 $214.00

9186419 $2,763.00 $2,763.00 9185719 $372.00 $372.00

9189324 $474.00 $474.00 9186520 $405.00 $405.00

9189325 $121.00 $121.00 9186521 $1,057.00 $688.00

9189326 $708.00 $708.00 9186522 $604.00 $604.00

9189327 $270.00 $270.00 9182135 $250.00 $250.00

9185708 $832.00 $832.00 9182136 $121.00 $121.00

9185709 $6,148.00 $6,148.00 9186523 $121.00 $121.00

9186420 $405.00 $181.00 9186524 $121.00 $121.00

9186421 $250.00 $0.00 9186525 $121.00 $121.00

9186422 $902.00 $902.00 9189342 $604.00 $604.00

9186423 $832.00 $832.00 9189343 $372.00 $372.00

9185710 $121.00 $121.00 9186480 $604.00 $604.00

9185711 $2,763.00 $2,763.00 9186527 $1,345.00 $1,345.00

9186424 $181.00 $181.00 9186528 $181.00 $181.00

9189331 $121.00 $121.00 9186529 $154.00 $154.00

9189332 $250.00 $250.00 9186530 $154.00 $154.00

9185712 $604.00 $604.00 9186532 $250.00 $250.00
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Citation No. Assessment Settlement Citation No. Assessment Settlement

9186533 $214.00 $214.00 9186484 $2,550.00 $2,550.00

9186481 $1,345.00 $1,345.00 9186538 $832.00 $832.00

9186535 $474.00 $474.00 9186539 $168.00 $168.00

9187211 $372.00 $0.00 9186540 $319.00 $319.00

9187212 $474.00 $474.00 9186541 $121.00 $121.00

9186482 $604.00 $604.00 9189350 $372.00 $372.00

9189345 $372.00 $372.00 9189351 $474.00 $474.00

9189346 $372.00 $372.00 9189352 $121.00 $121.00

9189347 $121.00 $121.00 9189353 $121.00 $121.00

9189348 $1,242.00 $1,242.00 9186545 $270.00 $270.00

9189349 $121.00 $121.00 9189354 $250.00 $250.00

9186483 $270.00 $270.00 TOTAL $59,978.00 $58,109.00

WHEREFORE, the motion for approval of settlement is GRANTED.

It is ORDERED that Citation No. 9186420 be MODIFIED to reduce the level of 

negligence from moderate to low.

It is further ORDERED that the operator pay a total penalty of $58,109.00 pursuant to 

the terms of the settlement agreement.

1

 

Thomas P. McCarthy

Administrative Law Judge

 1 Payment should be sent to: Pay.gov, a service of the U.S. Department of the Treasury, at 

https://www.pay.gov/public/form/start/67564508 or, alternately, Mine Safety & Health 

Administration, U.S. Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 

63179-0390.
5

Distribution:

Chris A. Weaver

U.S. Department of Labor

MSHA 604 Cheat Road

Morgantown, WV 26508

Wm. Allen McGilton

Murray Energy Corporation

46226 National Road

St. Clairsville, OH 43950

/ztb