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 14, 2021

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA),

 Petitioner

v.

WARRIOR MET COAL MINING, LLC,

 Respondent

CIVIL PENALTY PROCEEDINGS

Docket No. SE 2020-0213

A.C. No. 01-01401-516467

Docket No. SE 2020-0232

A.C. No. 01-01401-518427

Mine: No. 7 Mine

DECISION APPROVING SETTLEMENT

ORDER TO MODIFY

ORDER TO PAY

Before: Judge McCarthy

This case is before the undersigned upon Petitions 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). 

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

from $61,707.00 to $33,035.00. Citations No. 9493251, 9493254, 9493165, 9493261, 9493263, 

9493249, 9493250, 9493164, and 9493167 remain unchanged, but the Solicitor justifies the 

reductions in penalties by stating there are legitimate factual and legal disputes regarding gravity 

and negligence. The Solicitor also requests that

Citation No. 9493255 be modified to reduce the number of persons affected from two to 

one;

Citations No. 9493257 and 9493256 be modified to reduce the likelihoods of injury or 

illness from highly likely to reasonably likely and the numbers of persons affected from 

two to one; 

Citation No. 9493166 be modified to reduce the level of negligence from high to 

moderate; 

Citations No. 9133601, 9493273, 9264049, 9264050, and 9493308 be modified to reduce 

the levels of negligence from moderate to low; 
2

Citations No. 9493031 and 9493032 be modified to reduce the expected injuries or 

illnesses from fatal to permanently disabling; and

Citation No. 9230950 be modified to reduce the level of negligence from high to low.1

The Secretary also argues that “

[t]he Secretary’s use of [the 30 C.F.R. § 100.3] regular assessment tables in 

settlement is a prima facie indication that the penalty reduction is fair, reasonable, 

and adequate under the facts, and protects the public interest. It is appropriate to 

defer to the judgment of the parties[] in arriving at a modified penalty based on 

the § 100.3 tables.

Settlement Mot. at 9 (citing Vindex Energy Corp., 34 FMSHRC 223, 224 (Jan. 2012) (ALJ)). 

However, not only is the Commission not bound by 30 C.F.R. § 100.3, but it is the purview of 

the Commission—not the Secretary or regulations issued by the Secretary—to determine 

whether a settlement is appropriate under the criteria set forth in section 110(i) of the 

Act. Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151-52 (7th Cir. 1984) (“[N]either the 

ALJ nor the Commission is bound by the Secretary’s proposed penalties. . . . [W]e find no basis 

upon which to conclude that these MSHA [penalty] regulations also govern the 

Commission.”); Hidden Splendor Res., Inc., 36 FMSHRC 3099, 3101 (Dec. 2014) (“The 

Secretary’s regulations at 30 C.F.R. Part 100 apply only to the Secretary’s penalty proposals, 

while the Commission exercises independent “authority to assess all civil penalties provided 

[under the Act]’ by applying the six criteria set forth in section 110(i).” (quoting 30 U.S.C. 

§ 820(i))).

In order to overcome this burden, the Secretary must present evidence to a judge—

exercising his or her independent authority—to satisfy the six criteria set forth in section 

110(i). Simply pointing to the Secretary’s regulations does not overcome this burden. 

Therefore, the undersigned rejects the Solicitor’s contention that the application of section

100.3 establishes a prima facie case for a reasonable settlement.

Consequently, the undersigned evaluated the settlement agreement absent the argument 

rejected above.

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 section 110(i) of the 

Act. The settlement amounts are as follows:

1 Although there were some clerical errors in the Settlement Motion, the Secretary clarified the 

proposed settlement in an email dated July 13, 2021. This Decision reflects those clarifications.
3

Citation No. Assessment Settlement Citation No. Assessment Settlement

9493251 $1,076.00 $807.00 9493167 $782.00 $587.00

9493254 $482.00 $362.00 9230950 $324.00 $137.00

9493255 $2,595.00 $1,946.00 9493269 $1,166.00 $1,166.00

9493257 $19,178.00 $7,995.00 9493273 $720.00 $325.00

9493256 $19,178.00 $7,995.00 9264049 $1,166.00 $524.00

9493165 $2,394.00 $1,796.00 9149557 $351.00 $351.00

9493166 $2,394.00 $1,796.00 9264050 $144.00 $121.00

9493261 $720.00 $540.00 9493308 $144.00 $121.00

9493263 $720.00 $540.00 9493031 $482.00 $242.00

9493249 $1,076.00 $807.00 9493270 $1,166.00 $1,166.00

9493250 $2,394.00 $1,796.00 9493032 $482.00 $242.00

9133601 $1,166.00 $582.00 9493177 $144.00 $144.00

9493164 $1,263.00 $947.00

$61,707.00 $33,035.00

WHEREFORE, the motion for approval of settlement is GRANTED.

It is ORDERED that Citation No. 9493255 be MODIFIED to reduce the number of 

persons affected from two to one.

It is ORDERED that Citations No. 9493257 and 9493256 be MODIFIED to reduce the 

likelihoods of injury or illness from highly likely to reasonably likely and the numbers of persons 

affected from two to one.

It is ORDERED that Citation No. 9493166 be MODIFIED to reduce the level of 

negligence from high to moderate.

It is ORDERED that Citations No. 9133601, 9493273, 9264049, 9264050, and 9493308 

be MODIFIED to reduce the levels of negligence from moderate to low.

It is ORDERED that Citations No. 9493031 and 9493032 be MODIFIED to reduce the 

expected injuries or illnesses from fatal to permanently disabling.

It is ORDERED that Citation No. 9230950 be MODIFIED to reduce the level of 

negligence from high to low.
4

It is further ORDERED that the operator pay a total penalty of $33,035.00 within thirty 

days of this order.2

 

Thomas P. McCarthy

Administrative Law Judge

Distribution:

Jean C. Abreu

C. Renita Hollins

Office of the Solicitor

U.S. Department of Labor

61 Forsyth Street, S.W.

Room 7T10

Atlanta, GA 30303

abreu.jean.c@dol.gov

hollins.cordelia.r@dol.gov

Atl.fedcourt@dol.gov

Guy W. Hensley

Warrior Met Coal Mining, LLC

16243 Highway 216

Brookwood, AL 35444

guy.hensley@warriormetcoal.com

/ztb

2 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.