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

July 7, 2023 

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: 

Citation/ 

Order No.

Originally 

Proposed 

Assessment

Settlement 

Amount Modifications 

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 

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 
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 See, e.g., Unpublished Decision Approving Settlement, 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. 

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-statesannounces-civil-settlement-collect-all-debts-owed-justice-entities (last visited July 7, 2023).
3 

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

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) 

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.