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to the legislative history of the Mine Act and noted that Congress clearly "intended civil penalties assessed pursuant to the Mine Act to induce compliance with safety and health laws and regulations," and, in turn, to "deter operators from violating such mandates." The majority also relied on prior decisions in which it was recognized that civil penalties under the Mine Act are clearly intended to deter operators from violating the Mine Act and its corresponding regula- tions. What the majority in Black Beauty missed, and what the dis- senting opinion quite succinctly stated, is that, while civil as- sessments under the Mine Act are unquestionably designed to deter operators from repeat violations, the Mine Act's intended 'deterrent' effect is achieved through the application of the six fac- tors set forth in Section 110(i). In other words, while deterrence is clearly a principle that underlies the civil penalty scheme, it is not a separate factor that can be used to adjust the civil penalty, because the proper level of deterrence is achieved only through an evaluation and application of the six statutory criteria set forth in Section 110(i). After all, the monetary penalty, and hence the deterrent effect on an operator, will always increase when appro- priate if one simply follows the criteria set forth in Section 110(i). As the dissenting opinion points out, the majority's decision in Black Beauty not only overrules very sound and long-standing precedent, it also opens the door for extensive inconsistency and uncertainty surrounding settlement approvals, because each judge will be left to subjectively decide what "deterrence" means when evaluating settlements. The majority gave no indication as to whether it is error to fail to consider deter- rence as a separate factor, or on what is required and forbidden when considering deterrence as a separate factor. Thus, the inevitable result is that the majority's decision in Black Beauty will lead to situations in which one ALJ approves a settlement, while another rejects a highly similar settlement based on dif- fering subjective opinions as to what monetary penalty consti- tutes the appropriate level of "deterrence." Despite the dissent's well-reasoned opinion, alas the dis- senting opinion is not the law, and operators must therefore be prepared to arm themselves with as much factual support as possible justifying penalty reductions reached during settle- ment negotiations, particularly when the monetary reductions are significant. AM Leader in Design & Construction of Fines Recovery Systems Close-up photo: Recycled clarifi ed water To Water Reclamation! Is Your Solution MAXIMIZE YOUR PRODUCTIVITY WITH OUR CUSTOM DESIGNED EQUIPMENT. FRACTIONATOR VERTICAL DURABILITY CELL PLATE AND FRAME PRESS HIGH RATE THICKENER DEWATERING SCREEN SUPER CUTTER HYDRO-CYCLONE March 19-21, 2013 San Antonio, Texas Come See Us at Booth #2835 ASSEMBLED IN THE USA www.azfab.com 866.616.9351 AGGREGATES MANAGER December 2012 33