Leeco, Inc. (Commission decision, November 16, 2012)

Plain-English summary

An administrative law judge had found that Leeco's violation of its approved ventilation plan was not significant and substantial, reduced negligence, and assessed a $10,000 penalty. The Commission directed review on the significant and substantial issue. The parties then agreed to modify the citation to significant and substantial while retaining the $10,000 penalty. The Commission approved the settlement and ordered dismissal after payment.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.220(a)(1)
• Outcome: The citation was modified to significant and substantial, a $10,000 penalty was approved, and dismissal was ordered after payment.
• Key point: The Commission may approve a settlement that resolves a directed-review issue by changing the citation designation while preserving the judge's penalty amount.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

November 16, 2012

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v.

LEECO, INC. 

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Docket No. KENT 2008-773

A.C. No. 15-27497-1438853

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners

DECISION APPROVING SETTLEMENT

BY THE COMMISSION:

This case is before the Commission on review of the Administrative Law Judge’s June 22, 2012 decision holding that “the Secretary has not established that the violation [cited in Citation No. 7504580 (the “Citation”)] was significant and substantial.” 34 FMSHRC 1488, 1496 (June 2012) (ALJ). The Administrative Law Judge also lowered the level of negligence. Id. at 1497. With regard to the penalty, the judge concluded that

although the level of gravity was relatively high, the level of negligence was less than that initially found by the Secretary in proposing a penalty. Considering the good faith of the operator, the neutral effect of the remaining factors set forth in Section 110(i) of the Act, and placing significant weight on the lower level of Leeco’s negligence as contrasted with that initially found by the Secretary, I find that a penalty of $10,000.00 is appropriate.

Id. at 1498. The Commission, acting sua sponte, directed review of the judge’s decision. Specifically, “review [was] limited to the issue of whether the judge erred in finding that the Secretary failed to establish that the violation of 30 C.F.R. § 75.220(a)(1) was significant and substantial.” Unpublished Order dated July 23, 2012.

The parties have filed a Joint Motion to Approve Settlement. The original assessment for the Citation was $45,000. The parties propose to settle for a modification of the Citation as significant and substantial and a penalty of $10,000.

We have considered the representations and documentation submitted in this case, and we conclude that the proffered settlement is appropriate under the criteria set forth in section 110(i) of the Act, 30 U.S.C. § 820(i).

Wherefore, the motion for approval of the settlement is granted. It is ordered that the operator pay a penalty of $10,000 within 30 days of the date of this order.

Upon receipt of
payment, this case is dismissed. 

/s/ Mary Lu Jordan

Mary Lu Jordan, Chair

/s/Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution

Melanie J. Kilpatrick, Esq.

Rajkovich, Williams, Kilpatrick & True, PLLC

3151 Beaumont Centre Circle, Suite 375

Lexington, KY 40513

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA, U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Administrative Law Judge Avram Weisberger

Federal Mine Safety & Health Review Commission

1331 Pennsylvania Avenue, N. W., Suite 520N

Washington, D.C. 20004