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

February 9, 2023 

ORDER TO VACATE

DECISION APPROVING SETTLEMENT

ORDER TO MODIFY

ORDER TO PAY

Before: Judge Sullivan

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 a 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 $18,550.00 and the proposed settlement amount is $11,000.00. 

The proposed settlement includes:

Citation/ 

Order No.

Originally 

Proposed 

Assessment

Settlement 

Amount Modification 

9565168 $ 518.00 $ 518.00 No change.

9565170 $ 234.00 $ 234.00 No change.

9565171 $ 378.00 $ 378.00 No change.

9565172 $ 1,285.00 $ 800.00 Vacate 104(b) order and modify negligence

from “Low” to “None”

9565173 $ 7,473.00 $ 4,000.00 Vacate 104(b) order

9565177 $ 2,077.00 $ 1,000.00 Vacate 104(b) order and modify negligence

from “Low” to “None”

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA),

 Petitioner

 v. 

APPALACHIAN RESOURCE WEST

 VIRGINIA, LLC,

 Respondent

 CIVIL PENALTY PROCEEDING

Docket No. WEVA 2022-0516 

A.C. No. 46-08930-558400 

 Mine: Grapevine South Surface Mine
2

Citation/

Order No.

Originally 

Proposed 

Assessment

Settlement 

Amount Modification

9565178 $ 234.00 $ 234.00 No change.

9565179 $ 198.00 $ 198.00 No change.

9565180 $ 133.00 $ 133.00 No change.

9565181 $ 1,869.00 $ 934.00 Modify negligence from “Low” to “None”

9565182 $ 234.00 $ 234.00 No change.

9565183 $ 3,022.00 $ 1,442.00 Modify gravity from “Reasonably Likely” 

to “Unlikely” and remove S&S designation

9565184 $ 234.00 $ 234.00 No change.

9565185 $ 661.00 $ 661.00 No change.

Total $ 18,550.00 $ 11,000.00 

This case involves fourteen citations. Three of these citations have associated withdrawal 

orders issued pursuant to section 104(b) of the Mine Act, 30 U.S.C. § 814(b). The Secretary’s 

motion seeks the vacatur of all three 104(b) orders. Two of these orders—Orders Nos. 9565191 

and 9565192, associated with Citations Nos. 9565172 and 9565173, respectively—were included 

in the Secretary’s petition in this case. The third 104(b) order, which accompanies Citation No. 

9565177, was missing from the penalty petition. Because I highly doubted that there is any basis 

upon which I could approve a settlement motion specifying vacatur of an order I had never seen, 

by e-mail dated January 25, 2023, my law clerk requested that the Secretary provide a copy of 

the third order to correct the omission in the docket. 

In a February 8, 2023 filing in response, the Secretary refused to do so, perhaps 

motivated by pending litigation in Perry County Resources, LLC, Docket No. KENT 2022-0024. 

See ALJ Order Denying Sec’y’s Settlement Mot. and Sec’y’s Mot. to Certify for Interlocutory 

Review (Oct. 5, 2022); Commission Order (Dec. 6, 2022) (granting interlocutory review). The 

motion for settlement here, by specifically including vacatur of associated 104(b) orders, greatly 

distinguishes this docket from the Perry County case. Fortunately, the Respondent quickly 

stepped forward to forestall further needless delay by providing a copy of the missing Order, No. 

9567104, for the record in the case.

After reviewing the motion and the relevant 104(b) orders, I find that the Secretary has 

set forth the justification for the proposed modifications. 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 
3 

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. Accordingly, Orders Nos. 9565191, 

9565192, and 9567104 are VACATED and the motion to approve settlement is GRANTED. 

It is ORDERED that the negligence for Citations Nos. 9565172, 9565177, and 9565181 

be MODIFIED from “Low” to “None.” 

It is ORDERED that the gravity for Citation No. 9565183 be MODIFIED from 

“Reasonably Likely” to “Unlikely,” and that the S&S designation be removed. 

It is further ORDERED that the Respondent pay the Secretary of Labor the sum of 

$11,000.00 within 30 days of the date of this Decision.

1 

John T. Sullivan

Administrative Law Judge

Distribution: 

Karen M. Barefield, Esq., Office of the Solicitor, Regional Solicitor Office, 201 12th Street South, 

Suite 401 Arlington VA 22202-5450 (Barefield.karen@dol.gov) 

K. Brad Oakley, JACKSON KELLY PLLC, 100 W. Main Street, Suite 700, Lexington, KY 40507 

(kboakley@jacksonkelly.com) 

1 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.