Secretary of Labor v. Appalachian Resource West Virginia, LLC

Plain-English summary

The settlement resolved fourteen citations at Appalachian Resource's Grapevine South Surface Mine and reduced penalties from $18,550 to $11,000. Three associated section 104(b) withdrawal orders were vacated, three citations were changed from low to no negligence, and one citation was changed from reasonably likely and S&S to unlikely and non-S&S. One withdrawal order was missing from the Secretary's petition, and the Secretary declined the Judge's request to supply it while related litigation was pending. The operator provided the order instead, allowing the Judge to review all three withdrawal orders and approve the settlement.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 814(b), 820(i), and 820(k)
• Outcome: Three withdrawal orders were vacated, four citations were modified, and the settlement was approved for $11,000.
• Key point: The operator supplied a missing section 104(b) order after the Secretary declined, enabling review of the complete settlement record.

Full text (FMSHRC public release)

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 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:

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 ([email protected]__) __

K. Brad Oakley, JACKSON KELLY PLLC, 100 W. Main Street, Suite 700,
Lexington, KY 40507 ([email protected]__) __

[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.

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”
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 |