Honorable Richard W. Manning

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
721 19th Street, Suite 443
Denver, CO 80202?2500

GENWAL RESOURCES, INC., and
UTAH AMERICAN ENERGY, INC.

Contestants

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent



CONTEST PROCEEDINGS

Docket No. WEST 2008-1422-R
Order No. 7697001; 07/24/2008

Docket No WEST 
Order No. 7697002; 07/24/2008

Docket No. WEST 2008-1424-R
Order No. 7697003; 07/24/2008

Docket No. WEST 2008-1425-R
Order No. 7697004; 07/24/2008

Docket No. WEST 
Order No. 7697005; 07/24/2008

DoCket No. WEST 2880-1427-R
Order No. 7697006; 07/24/2008

DOCket No. WEST 2008-1428-R
Order No. 7697007; 07/24/2008

Docket No. WEST 
Order No. 7697008; 07/24/2008

Docket No. WEST 2008-143 O-R
Order No. 769701 1; 07/24/2008

Docket No. WEST 2008-1431-R
Order No. 7697012; 07/24/2008

Docket No. WEST 
Order No. 7018222; 07/24/2008

Docket No. WEST 2008-1433-R
Order No. 7018224; 07/24/2008

Docket No. WEST 
Citation No. 7018225; 07/24/2008

 

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

V.

GENWAL RESOURCES, INC., and

UTAH AMERICAN ENERGY, INC.

Respondents

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

V.

ANDALEX RESOURCES, INC,
Respondent



Docket No. WEST 
Citation No. 7018226; 07/24/2008

Docket No. WEST 
Order No. 7018227; 07/24/2008

Docket No. WEST 
Order No. 7018228; 07/24/2008

Docket No. WEST 2008-1438-R
Citation No. 7018229; 07/24/2008

Crandall Canyon Mine
Mine ID 42-01715
CIVIL PENALTY PROCEEDINGS

Docket No. WEST 20084475
A.C. No. 42-01715-159798-01

Docket No. WEST 2008?1476
A.C. No. 42-01715-159798-02

Crandall Canyon Mine

CIVIL PENALTY PROCEEDINGS

Docket No. WEST 2009-86
A.C. No. 42~02028-164100

Docket No. WEST 2009-87
A.C. No. 42?02028?164100

Docket No. WEST 2009-145
A.C. No. 42-02028-167616-02

Docket No. WEST 2009-147
A.C. No. 42?02028-167044

Aberdeen Mine

 

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

V0

UTAH AMERICAN ENERGY, INC,
Respondent

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

V.

CIVIL PENALTY PROCEEDINGS

Docket No. WEST 2011?1482
A.C. No. 42?02241-263701

Docket No. WEST 2012-97
A.C. No. 42?02241?266768

Lila Canyon Mine

CIVIL PENALTY PROCEEDINGS

Docket No. WEST 201 1-1062
A.C. No. 42?02233?254745

Docket No. WEST 2011?1223
A.C. No. 42?02233?2572335

Docket No. WEST 2011-1312
A.C. No. 42?02233-260425

Docket No. WEST 2011?1479
A.C. No. 42-02233?263445

Docket No. WEST 2012-94
A.C. No. 42?02233?266525~01

Docket No. WEST 2012?95
A.C. No. 42-02233-266525-02

Docket No. WEST 2012-234
A.C. No. 42-02233-269203

Docket No. WEST 2012?326
A.C. No. 42?02233?272063

Docket No. WEST 2012?490
A.C. No. 42-02233-277776

Docket No. WEST 2012-651
A.C. No. 42-02233-2550469

Docket No. WEST 2012-704
A.C. No. 42?02233u283085

 

Docket No. WEST 2012?901 
A.C. No. 42-02233-286086

Docket No. WEST 2012-1039
A.C. No. 42?02233-289173

Docket No. WEST 2012-1070
A.C. N0. 42?02233-291876

Docket No. WEST 2012?1071
No. 42-02233-291876

WEST RIDGE RESOURCES, INC,

Respondent West Ridge Mine

Mr 

 

MOTION TO APPROVE SETTLEMENT AND ORDER PAYMENT

 

This matter arises from the accidents at the Crandall Canyon Mine in August of 2007 that
resulted in a tragic loss of lives, and serious injuries. During mining operations on August 6,
2007, a large portion of the underground coal mine collapsed. Six miners perished as a result.
On August 16, 2007, during rescue operations to reach the six mine-rs, an additional collapse
killed three rescuers and injured six others. Following an extensive investigation into the causes
of the accidents, the Mine Safety Health Administration issued twenty
enforcement actions to Contestant/Respondent Genwal Resources, Inc. and
UtahAmerican Energy, Inc. as a unitary operator of the mine, for violations of the
Federal Mine Safety and Health Act lof 1977 (the ?Mine Act?) and the mandatory safety
standards promulgated thereto. Following extensive discovery and technical analyses in the
ensuing litigation, the parties engaged in substantial negotiations and reached a global settlement

agreement resolving all outstanding matters concerning the August 2007 accidents at the mine as

 

well as almost all currently assessed citations and orders pending at the West Ridge Mine, the

Aberdeen Mine, and the Lila Canyon Mine.

The Twenty Accident?Related Violations

1. As a result of facts disclosed during litigation of these matters, the parties have agreed
that Andalex Resources, Inc. shall be substituted for UEI for all purposes in contest
Docket Nos. WEST through WEST 2008-1438-R, and in penalty Docket Nos.
WEST 2008?1475 and WEST 2008-1476. GRI is and was a wholly-owned subsidiary of ARI.
Therefore, as referenced herein, the appropriate contestant/operator is 

2. The Secretary of Labor (?Secretary?) certi?es in compliance with Commission
Rule 31(b)(2) that prior to ?ling this Motion, a copy of the Motion was provided to counsel for
the Contestants/Respondents for review, and that the Contestants/Respondents listed in the
captions above consent to the granting of the Motion and the entry of the proposed Decision
Approving Settlement ?led herewith. The parties move for an Order approving the settlement
agreement and ordering payment of the settlement amounts.

3. Based on various factual and legal determinations made during the litigation of these
matters, the Secretary concludes that the following modi?cations are appropriate and supported
by the facts and evidence in support of the violations:

a. Citation/Order Nos. 7018224, 7697001, and 7697004were issued in
relation to a?bounce that occurred in the mine on March 7, 2007. During litigation, facts showed
that, while a bounce occurred, the evidence did not meet the strict requirements necessary to
establish violations of the mandatory safety standards: which those citations and orders charged

had been violated. Therefore, based on her prosecutorial discretion and careful consideration of

 

 

the evidence, the Secretary hereby vacates those citations and orders. RBK Constr. Inc., 15
2099 (Oct. 1993). 

b. Order Nos. 7018227 and 7018228 were issued in relation to mining the
solid faces at the west ends of the north and south barrier sections of the mine and are modi?ed
from high negligence to moderate negligence and from Section 104(d)(2) Orders to Section
104(a) Citations. The evidence presented by mitigates the negligence ?ndings for
these violations because the approved plan and the communications between MSHA and
did not speci?cally address mining the areas in question. Given these changes, the
penalties are also reduced as part of the settlement.

0. Order 7697005 was issued for failing to propose adequate revisions to the
roof control plan following the March 10, 2007 accident at the mine: The order is modi?ed from
high negligence to moderate negligence and from a Section 104(d)(2) Order to a Section 104(a)
Citation. The evidence presented by mitigates the negligence ?nding for this violation
because did submit a plan revision based on recommendations from its engineering
contractor, Agapito Associates, Inc. following the. March 10, 2007 accident. There are no other
changes to the characterizations or penalty amount, and this violation is maintained as
contributory to the cause or effect of the accident.1

(1. Order No. 7697003 was issued for failing to report the August 3, 2007
accident at the mine to MSHA within ?fteen minutes. The Order is modi?ed from reckless
disregard to high negligence, and, accordingly, the ?agrant designation is removed. The parties
agree that the evidence does. not support that recklessly or repeatedly failed to

eliminate a known violation of 30 C.F.R. 50.10 by failing to report the August 3, 2007

 

1 See in?a note 3 and accompanying text.

 

accident. The Order, however, is maintained as contributory.2 There are no other changes to the
characterizations of the Order, although the penalty is reduced to the maximum provided for a
non-?agrant Violation.

e. The parties agree that Order Nos. 7018222, 7697002, and 7697008 are to
be considered ?non-contributory.? The parties recognize that there exist legitimate factual and
legal disputes regarding the contributory nature of the violations.3 Thus, the parties have agreed:
(1) to delete the next to last sentence in Section 8 of Order No. 7697002, and the following
words in the next to last sentence in Order No. 7018222: ?and contributed to the fatal accident
on August 6, 2007;? and (2) to classify all three of these Orders as ?non-contributory.?
Reductions in penalty amounts have been made to Orders Nos. 7697002 and 7018222, but not
7697008.

f. Citation Nos. 7018225 and 7018226 were issued for failure to ?le accident
reports within ten days after the March 10, 2007 accident and August 3, 2007 accident,
respectively. did eventually provide some facts to MSHA regarding the March 10,
2007 accident and had insufficient time to provide a written report following the August 3, 2007
accident. Thus, a reduction in negligence to high is provided for the former, and penalty
amounts are reduced for both of these citations.

g. Citation No. 7018229 alleges that the mine operator failed to plot bounces

and roof falls on the mine map. Because most of the violations occurred under prior mine

 

2 See in?a note 3 and accompanying text.

3 Based on exhaustive review of scienti?c and? other evidence, the parties disagree as to whether the evidence which
could be presented at a hearing supports the contributory characterizations of these Violations. The Secretary would
present evidence at trial showing that the violations cited therein contributed to the cause or effect of the accidents.
would present evidence to the contrary, that the violations did not contribute to the cause or effect of the
accidents.

 

ownership, and span the decade prior to the accidents in August 2007, the penalty amount is

reduced.

Citation No. 7697012 alleges that the mine operator failed to track miners

underground following the August 16, 2007 accident. Because of the chaotic nature of the

events in the immediate aftermath of the accident, the Secretary agrees to a reduction in the

penalty amount.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

4. Disposition of the penalty dockets is shown below.
TABLE 1
Penalty Docket Citation/ Type of Violation
Order Standard Characterizations Assessed Amended
Penalty Penalty
WEST 2008-1475 7018222 7 5.220(a) 104(d)(2), Occurred, $220,000 $207,000
Reckless Disregard, 8&8,
Flagrant, Non-Contributory
7018224 50.20(a) Vacated $60,000 0
7018225 50.20(a) 104(a), No Likelihood, $60,000 $5,000
High, Non-8&8
7018226 50.20(a) 104(a), No Likelihood, $25,000 $2,500
Moderate, Non?8&8
7018227 104(a), Highly Likely, $60,000 $28,500
Moderate, 
7018228 75.220(a) 104(a), Highly Likely, $60,000 $28,500
Moderate, 
7018229 75.223(b) 104(a), Unlikely, $25,000 $2,500
Moderate, Non-3&3
7697001 50.10 Vacated $220,000 0
7697002 50.10 104(d)(2), Occurred, $220,000 $207,000
Reckless Disregard, 
Flagrant, Non-contributory
7697003 50.10 104(d)(2), Occurred, $220,000 $60,000
High, 8&8, Not Flagrant,
- Contributory
7697004 75.223(a) Vacated $60,000 0
7697005 75.223(a) 104(a), Occurred, $60,000 $60,000
Moderate, Contributory
7697006 75.223(a) 104(d)(2), Occurred, $220,000 $220,000
Reckless Disregard, 8&8,
Flagrant, Contributory
7697007 75.203(a) 104(d)(2), occurred, $60,000 $60,000
High, Contributory
7697008 75.203(a) 104(d)(2), Occurred, $60,000 $60,000
High, Non-Contributory
7697011 50.10 104(a), Unlikely, $5,000 $5,000

 

 

 

Low, Non-8&8

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

I 7697012 1 316(b) 104(a), Low, s&s $4,000 $3,000
Total Docket Penalty $1,639,000 $949,000
WEST 2008-1476 Citation Standard Gravity and Negligence Assessed Amended
Penalty Penalty
7018230 75.364(h) 104(a), Unlikely, $117 $1 17
Moderate, 
701823 1 75 .364(h) 104(a), Unlikely, Moderate, $1 17 $1 17
Non-8&3
7018232 75.3 64(h) 104(3), Unlikely, Moderate, $117 $1 17
Non-3&8
Totai Docket Penalty $351 $351
Totai Penalties $1,639,351 $949,351
Additional Dockets:
5. In addition to the enforcement actions resulting from the accidents at the Crandall

Canyon Mine in August 2007, the parties have agreed to resolve nearly all currently assessed

citations and orders pending at the West Ridge Mine, the Aberdeen Mine, and the Lila Canyon

Mine. The respective mine operators have made numerous contentions that the gravity,

negligence and nUmber of people affected is less than'alleged in the citations and orders as

issued. The Secretary believes that the characterizatiOns within those citations and arguments is

 

 

 

supportable, but recognizes that there exist legitimate factual and legal disputes. The parties

have agreed to resolve those matters by maintaining all characterizations on the citations and

orders but reducing the penalties. Disposition of the penalty dockets is shown below.

 

 

 

 

 

 

 

 

 

 

 

 

 

TABLE 2
Penalty Docket Citation/Order Assessed Penaity .?Amended Penaity
WEST 2009?86 7288432 $8,421 $5,565
7288435 $9,122 $6,025
8454006 $1,657 $1,100
8454007 $2,473 $1,635
Total Docket Penalty $21,673 $14,325
TABLE .3
Penalty Docket Citation/Order 'Assessed Penalty Amended Penalty
WEST 2009-87 8454003 $334 $225
8454005 $334 $225

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

8454008 $190 $125
8454013 $263 $180
Total Docket Penalty $1,121 $755
TABLE 4
Penalty Docket Citation/Order Assessed Penalty Amended Penalty
WEST 2009-145 7636839 $2,515 $1,665
Total Docket Penalty $2,515 $1,665
TABLE 5
Penaity Docket Citation/Order Assessed Penalty Amended Penalty
WEST 2009-147 6686481 $1,026 $680
7288325 $585 $390
Total Docket Penalty $1,611 $1,070
TABLE 6
Penalty Docket Citation/Order Assessed Penaity: Amended Penalty
WEST 2011-1062 8461506 I $1,412 $935
8461456 $1,304 $870
8461511 $807 $535
8461512 $2,901 $1,915
8461514 $460 $310
8458756 $687 $455
8461515 $5,080 $3,355
8459017 $1,111 $735
Total Docket Penalty $13,762 $9,110
TABLE 7
Penalty Docket Citation/Order Assessed Penalty Amended Penalty
WEST 2011-1223 8459020 - $460 $305
8458759 $807 $535
8461068 $263 $175
8461069 $263 $175
8461465 $807 $535
8461466 $807 $535
8461467 5 $3,996 $2,640
8459204 $2,106 $1,390
8459205 $425 $280
8459206 $190 $125
8461533 $873 $580
8461534 $138 $90
Total Docket Penalty $11,135 $7,365

 

 

 

 

.10

 

 

 

 

TABLE 8

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Penalty Docket Citation/Order Assessed Penalty Amended Penalty

WEST 2011-1312 8461535 $873 $580
8465080 $2,678 $1,770
8461537 $873 $580
8461070 $207 $140
8461539 $1,530 $1,010
8461542 $138 $90
8461547 $5,080 $3,360
8461548 $5,080 $3,360
8461549 $687 $460
8461550 $687 $460

Total Docket Penalty $17,833 $11,810

TABLE 9

Penalty Docket Citation/Order Assessed Penalty Amended Penalty

WEST 2011?1479 8461528 $1 1,306 $7,460
7289401 $585 $390
8461552 $873 $579
8461554 $1,026 $680
7289405 $2,901 $1,915
7289406 $585 $386
8461558 $873 $576
8461560 $873 $576
8458299 $3,689 $2,435
8458300 $499 $330
6688635 $1,657 $1,095
6688636 $1,795 $1,185
6688640 $585 $386
6688641 $687 $455
8461683 $873 $576
8459304 $873 $576
8459422 $1,203 $795
8461613 $946 $625

Total Docket Penalty $31,829 $21,020

TABLE 10

Penalty Docket Citation/Order Assessed Penalty Amended'Penalty

WEST 2011-1482 8460982 $1,200 $800

Total Docket Penaity $1,200 $800

 

 

 

11

 

 

 

 



 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Penalty Docket Citation/Order Assessed Penalty Amended Penaity
WEST 2012-94 8458987 $2,473 $1,640
8458988 $2,473 $1,640
8458990 $2,473 $1,640
8458991 $2,473 $1,640
Total Docket Penalty $9,892 $6,560
TABLE 12
Penalty Docket Citation/Order Assessed Penaity Amended Penalty
WEST 2012-95 8461541 $1,304 $860
8461543 $1,203 $800
8461555 $1,203 $800
8461692 $946 $630
8461696 $540 $360
8461697 $585 $390
8461698 $4,329 $2,860
Total Docket Penalty $10,110 $6,700
TABLE 13
Penalty Docket Citation/Order Assessed Penalty Amended Penalty
WEST 2012-97 8458986 $807 $540
Total Docket Penalty $807 $540
TABLE14
Penalty Docket Citation/Order Assessed Penalty Amended Penalty
WEST 2012?234 8461702 - $585 $390
8461703 $4,329 $2,860
8461704 $807 $540
8459309 $362 $240
8459310 $1,203 $800
8461706 $585 $390
8461707 $873 $580
8461708 $585? $390
8461709 $499 $330
8461710 $499 $330
846171 1 $499 $330
Total Docket Penalty $10,826 $7,180

 

 

 

'12

 

 

 

 

 

TABLEIS

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Penalty Docket Citation/Order Assessed Penalty Amended Penalty

WEST 2012-326 8461532 $1,304 $860
8461715 $6,458 $4,265
8461716 $6,458 $4,265
8461717 - $6,458 $4,265
8461718 $1,111 $740
8461720 $873 $575
8461763 $373 ?$575
8461764 $1,026 $680
8461767 $1,026 $680
84583 89 $946 $630
8458391 $634 $420
8459325 $1,304 $860
8461768 $873 $575
8461769 $873 $575
8461770 $873 $575
8461771 $873 $575

Total Docket Penaity $31,963 $21,115

TABLE 16

Penalty Docket Citation/Order Assessed Penalty Amended Penalty

WEST 2012-490 8459704 $745 $495
8461679 $1,412 $935
8461680 $1,412 $935
8461419 $634 $420
8461421 $3 ,405 $2,250
8461423 $807 $535
8461424 $946 $625
8461426 $308 $209
8459560 $2,106 $1,390
8461427 $873 $580
8461428 $745 $495
8461430 $1,530 $1,010

Total Docket Penalty $14,923 $9,879

TABLE 17

Penaity Docket Citation/Order Assessed Penalty Amended Penalty

WEST 2012?651 8461691 $1,304 $860
8461283 $807 $535
8461699 $425 $280
8459432 $807 $535
8461714 $585 $390
8459544 $5,961 $3,935
8461631 7' - $1,203 $795
8459552 $1,795 85

 

 

13

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

8459556 $1,657 $1,095
8461425 $1,304 $860
8461847 $634 $420
8461433 $687 $455
8461435 $1,026 $680
8461741 $585 $390
8461436 $1,026 $680
8461782 $946 $625
8461783 $946 $625
8459227 $1,111 $735
8459789 $425 $280
Total Docket Penalty $23,234 $15,360
TABLE 18
Penalty Docket Citation/Order Assessed Penalty Amended Penalty
WEST 2012-704 8461882 $873 $580
8459796 $1,657 $1,095
8459716 $1,026 $680
8461888 $873 $580
8461889 $16,867 $11,135
8461890 $2,473 $1,635
8460956 $3,689 $2,435
8460958 $3,689 $2,435
Total Docket Penalty $31,147 $20,575
TABLE 19
Penalty Docket Citation/Order Assessed Penalty Amended Penalty
WEST 2012?901 8460955 $1,111 $735
8460959 $873 $5 80
8461858 $873 $580
8459719 $1,111 $735
8459722 $1,026 $680
8461892 $873 $580
8461921 $2,678 $1,770
8461963 $873 $5 80
8461893 $3,689 $2,435
8459803 $873 $580
8461964 $873 $580
8461965 $873 $580
Total Docket Penalty $15,726 - $10,415
TABLE 20
Penalty Docket Citation/Order Assessed Penalty Amended Penalty
WEST 2012-1039 8461968 $873 $580

 

 

 

 

14

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

8461789 $585 $390
8461970 $1,026 $680
8461759 $9,634 $6,360
8461760 $9,634 $6,360
8461861 $9,634 $6,360
8461903 $190 $125
8461862 $2,106 $1,390
Total Docket Penalty $33,682 $22,245
TABLE 21
Penalty Docket Citation/Order Assessed Penalty Amended Penalty
WEST 2012-1070 8461891 $1 1,000 $7,260
Total Docket Penaity $1 1,000 $7,260
TABLE 22
Penalty Docket Citation/Order Assessed Penalty Amended Penalty
WEST 2012-1071 8465214 $1,026 $680
8459732 $1,530 $1,010
8459733 $687 $455
8459805 $946 $625
8459740 $1,530 $1,010
8482001 $745 $495
8461867 $946 $625
Total Docket Penalty $7,410 $4,900
6. Except as noted above, the parties have agreed that no other changes to the
citations or orders are to be made.
7. Neither this settlement agreement nor the mine operators? consent to entry of a

?nal order by the Review Commission pursuant to this Agreement constitutes any admission by

the operators of a Violation of the Federal Mine Safety and Health Act or regulations or standards

promulgated thereunder, except for purposes of proceedings under the Mine Act. The

stipulations, ?ndings, and actions taken herein are made for the purposes of settling this matter
amicably, and they shall not be used for any purpose, except proceedings and matters arising

under the Mine Act.

15

 

8. Contestants/Respondents agree to withdraw their contests to the citations and
orders effective upon the approval of this settlement by the Commission. Information pertaining
to the operators? history of previous violations was ?led by the Secretary along with the petitions
in the above-captioned proceedings. The proposed amended penalties are appropriate taking into
consideration the size of the business of the operator charged and the operators? history of
previous violations. Contestants/Respondents are large operators as that term in used in the
Mine Act and its penalty scheme.

9. Payment of the amended proposed penalties will not affect Contestant?lespondent?s
ability to continue in business.

10. Due to the cessation of mining at, and sealing of, the Crandall Canyon Mine, most
of the citations and orders issued folloWing the accident investigation could not be abated, let
alone abated in a timely manner. For those few that could, abated them in good faith
as that term is used in the Mine Act. The other citations and orders consolidated herein were
abated in good faith, except as may be otherwise re?ected on the citations and orders themselves.

11. The Secretary has carefully considered each of the criteria set forth at Section
110(i) of the Act and has determined that the proposed penalties for each of the citations and
orders in all of the above-mentioned dockets are appropriate in light of these criteria. Further,
after careful consideration, the Secretary has concluded that the modi?cations and proposed
penalties outlined above are in the public interest and adequately promote the purposes of the
Mine Act, including deterrence of future violations, 

12. Each party hereby agrees to bear its own fees, costs and other expenses incurred
by such party in connection with any stage of this proceeding.

13. Upon the issuance of an order approving this settlement, payment shall be made

16

 

by Contestants/Respondents, to the Of?ce of Assessments, Mine Safety and Health

Administration, P.O. Box 790390, St. Louis, MO 63179-0390. The Assessment Control

Numbers listed above shall be included on the payments. The payments shall be considered to

be ?made,? as that term is used in this paragraph, on the date payments are placed in the US.

mail, ?rst class postage prepaid.

WHEREFORE, the parties move the Commission to approve the above settlement

agreement and to order payment of the amended proposed penalties of $1,150,000 Within 30

days of the ?ling of an order approving settlement.

OFFICE OF THE SOLICITOR
1999 Broadway, Suite 1600
Denver, CO 80202-5710

Telephone: 303?844?1745, 303-844-1751

Direct: 303-844-1389
Fax: 303-844-1753

OFFICE OF THE SOLICITOR
DIVISION OF MINE

SAFETY AND HEALTH

1100 Wilson Blvd.

22nd ?oor

Arlington, Virginia 22209?2296
Telephone: 202-693~9300
Fax: 202-693?9368

Respectfully submitted,

M. PATRICIA SMITH
Solicitor of Labor

JAMES 
Regional Solicitor

JOHN RAINWATER

Associate We] Solicitor
HY S. WILLIAMS
Sen' Trial Attorney

MATTHEW FINNIGAN

    
   

 

7 Trial Attorney

HEIDI STRASSLER
Associate Solicitor
for Mine Safety and Health

DEREK J. BAXTER
Co-Counsel for Trial Litigation

DANA L. FERGUSON
Senior Trial Attorney

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MATTHEW BABINGTON
Trial Attorney

Attorneys for the Secretary of Labor
Mine Safety and Health Administration

CERTIFICATE OF SERVICE
Service of the foregoing Motion to Approve Settlement and Order payment has this date

been made by electronic mail to Contestants/Respondents, care of counsel:

Jason W. Hardin, Esq.

Fabian Clendenin

215 S. State St., Suite 1200

Salt Lake City, Utah 84111?2323
ihardin@fabianlaw.com

Thomas C. Means, Esq.

Crowell Moring

1001 Avenue, NW
Washington, DC. 20004?2595

tmeans@crowell.com

Marco M. Rajkovich, Jr., Esq.
Rajkovich, Williams, Kilpatrick True
3151 Beaumont Center Circle
Lexington, Kentucky 40513


Dated this 27th day of September, 2012. . 

     
      

Matthew Finnigan

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