MESA's underlying contention is that in a default proceeding where MESA's proposed findings of fact are adopted by the Judge, he may not reduce the penalties assessed below the level recommended by MESA. We are of the opinion that this contention must fail for two reasons. First, the Board has repeatedly held both in a default case, Eastern Coal Corporation, 3 IBMA 132, 81 I.D. 224, 1973-1974 OSHD par. 17,815 (1974), and in contested cases, Spring Branch Coal Company, 2 IBMA 154, 80 I.D. 438, 1971-1973 OSHD par. 16,240 (1973), Buffalo Mining Company, 2 IBMA 226, 80 I.D. 630, 1973-1974 OSHD par. 16,618 (1973), Old Ben Coal Company, 4 IBMA 198, 82 I.D. 264, 1974-1975 OSHD par. 19,722 (1975), that a section 109 penalty proceeding is de novo and that the penalty assessed therein is to be determined irrespective of any prior proposed assessment. In all of these cases MESA did not challenge or object to the Judge's apparent increase in the proposed assessments which was based on his belief that the violations warranted the penalties he assessed. We also note that the form letter which advises the operator of a recommended penalty, appearing in the Assessments Manual states, "[y]ou should understand that, assuming that we sustain our burden of proof in establishing liability, the Administrative Law Judge may fix the penalty at any amount up to $10,000 for each violation, in accordance with Section 109(a) of the Act, 30 U.S.C. § 819(a)." (Emphasis added.) Accordingly, ME SA's contention that the Judge is reducing a penalty is erroneous. The Judge is assessing the penalty in the first instance pursuant to 43 CFR 4.500(a)(2) and 4.544(a). Therefore, his penalty assessment may not be challenged merely because his consideration of the six statutory criteria results in a dollar amount which differs from that recommended by MESA. Secondly, 43 CFR 4.545 states in pertinent part: (c) In determining the amount of civil penalty warranted the administrative law judge and the Board of Mine Operations Appeals shall not be bound by a recommended penalty of the Mining Enforcement and Safety Administration or by any offer of settlement made by either party. In arriving at the penalties assessed in the instant case, the Judge stated that he had considered the six statutory criteria and that based upon that consideration he found the amounts he assessed to be appropriate. Having reviewed the record and the brief submitted by MESA, the Board is of the opinion that MESA has not shown that the Judge abused his discretion in assessing the instant penalties. Since the Judge considered the statutory criteria in arriving at the penalty assessment, the Board is not inclined to substitute its judgment for his, absent a clear abuse of discretion. 1 Accordingly, the Board will not disturb the Judge's decision in this case. 17 However, by an independent analysis, in which the Board applied median penalty point values in the assessment formula set forth in ORDER WHEREFORE, pursuant to the authority delegated to the Board by the Secretary of the Interior (43 CFR 4.1(4)), IT IS HEREBY ORDERED that the Judge's decision in the above-captioned case IS AFFIRMED and that Boggs Construction Company pay the penalty assessment of $85 on or before 30 days from the date of this 30 CFR Part 100 to the findings of fact adopted by the Judge, a penalty assessment was reached which was within 1 or 2 dollars of that levied by the Judge. INT:5370-76 US INTERIOR IBMA 76-67 United States Department of the Interior OFFICE OF HEARINGS AND APPEALS INTERIOR BOARD OF MINE OPERATIONS APPEALS 4015 WILSON BOULEVARD ARLINGTON, VIRGINIA 22203 RUSHTON MINING COMPANY Decided May 27, 1976 Appeal by Rushton Mining Company from a decision by Administrative Law Judge Paul Merlin, dated February 6, 1976 (Docket Nos. PITT 76-24-P, PITT 76-25-P, and PITT 76-46-P), assessing civil penalties in the amount of $1,415 for 10 violations pursuant to section 109 (a) of the Federal Coal Mine Health and Safety Act of 1969. Affirmed. APPEARANCES: Richard M. Sharp, Esq., for appellant, Rushton Mining Company; Thomas A. Mascolino, Esq., Assistant Solicitor, and Robert J. MEMORANDUM OPINION AND ORDER Of the 10 violations found by the Administrative Law Judge (Judge) to have occurred at the Rushton Mine in Centre County, Pennsylvania, seven are on appeal for which the Judge assessed civil penalties in the amount of $1,200 in a proceeding brought pursuant to section 109 (a) of the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 819 (a) (1970). We have reviewed the record, the briefs of the Rushton Mining Company and the Mining Enforcement and Safety Administration, and find that Rushton Mining Company has not demonstrated any reason why the findings of fact, conclusions of law, and decision of the Judge should not be affirmed. The penalties assessed by the Judge are not unreasonable in the opinion of the Board, are supported by the substantial evidence of record, and reflect the requisite consideration of the six statutory criteria of section 109 (a). ORDER WHEREFORE, pursuant to the authority delegated to the Board of Mine Operations Appeals by the Secretary of the Interior (43 CFR 6 IBMA 151 |