**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.

 

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

** **

**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:

 
| 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”                               |
| 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 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]

 

 

 

 

/s/John T. Sullivan

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) 

 

 

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[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.