**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.

 

 

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; 

 

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:

 

 

**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.

 

Itis further **ORDERED** that the operator pay a total penalty of $33,035.00within thirty days of this order.[2]

 

 

 

 

/s/Thomas P. McCarthy

                                                                        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

----

[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.

[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.