Secretary of Labor v. South Dakota Cement Plant (ALJ decision, October 16, 1980)

Plain-English summary

MSHA sought penalties against South Dakota Cement Plant on two citations. The Secretary moved to withdraw Citation No. 329618 because its alleged violation had not occurred. The operator agreed to pay the proposed $78 penalty on Citation No. 330611 and withdrew its contest. Judge Joseph B. Kennedy treated the latter motion as a settlement request requiring approval, granted both motions, and ordered the $78 payment. He dismissed the case subject to payment; the decision does not identify either cited safety standard.

Decision snapshot

• Cited standards: Not identified in the decision.
• Outcome: Citation No. 329618 withdrawn; Citation No. 330611 settled for $78; case dismissed subject to payment.
• Key point: Withdrawing a contest while agreeing to pay a proposed penalty required the judge to approve a settlement.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. SOUTH DAKOTA CEMENT PLANT DDATE: 19801016 TTEXT:
~2928

Federal Mine Safety and Health Review Commission Office of Administrative Law Judges

SECRETARY OF LABOR,
Civil Penalty Proceeding
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket No. CENT 80-297-M
PETITIONER
A.O. No. 39-00967-05011

v. South Dakota Cement Plant

SOUTH DAKOTA CEMENT PLANT,
RESPONDENT

DECISION AND ORDER

The Secretary moves to withdraw and dismiss his proposal for penalty as to citation 329618 on the ground the violation charged did not, in fact, occur. This I construe as a motion to withdraw a pleading and to vacate and proposed penalty ab initio pursuant to Rule 11 and not as a motion to approve settlement under Rule

30. See, Pomerleau Bros. Inc., WILK 79-4-PM (February 13, 1979).

    Concurrently, the operator moves to withdraw its notice of
    contest as to citation 330611 and to pay the proposed penalty of
    $78. It has long been held that the requirements of Rule 30 and section 110(k) of the Act may not be circumvented by resort to Rule 11 through the withdrawal of a notice of contest since this involves approval of the penalty proposed and therefore approval of a settlement. See Pomerleau, supra. The operator's motion will therefore be considered as a motion to approve settlement.

    Based on an independent evaluation and de novo review of the
    circumstances, I conclude both motions should be granted. Accordingly, it is ORDERED that the motion to withdraw and the motion to approve settlement be, and hereby are, GRANTED. It is FURTHER ORDERED the operator pay the amount of the penalty agreed upon, $78.00, on or before Monday, November 3, 1980 and that subject to payment the captioned matter be DISMISSED.

                              Joseph B. Kennedy
                              Administrative Law Judge