Pontiki Coal Corporation

Plain-English summary

Pontiki Coal settled four contested violations arising from accumulations and equipment conditions at its Mine Number Two, with a total penalty of $7,500. The Commission held that the Administrative Law Judge went beyond the limited settlement record by making unsupported comments about advance inspection notice, bribery, lax enforcement, and alleged criminal conduct. It struck those comments and affirmed the settlement approval on the narrow ground that the $7,500 settlement was supported by the record and consistent with the statutory penalty criteria. The Commission also noted that the Department of Justice had found that further criminal investigation was not warranted.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.400, 75.1725, and 75.404
• Outcome: The settlement approval was affirmed, but unsupported comments in the ALJ's written decision were struck.
• Key point: A judge reviewing a settlement must limit findings and commentary to matters supported by the record and within the scope of the settlement.

Full text (FMSHRC public release)

CCASE:
MSHA V. PONTIKI COAL
DDATE:
19860527
TTEXT:
FMSHRC-WDC
MAY 27, 1986
SECRETARY OF LABOR, Docket Nos. KENT 83-181-R
MINE SAFETY AND HEALTH KENT 83-182-R
ADMINISTRATION (MSHA) KENT 83-183-R
KENT 83-184-R
KENT 83-256
v. KENT 83-262
PONTIKI COAL CORPORATION

BEFORE: Backley, Doyle, Lastowka and Nelson, Commissioners
DECISION
BY THE COMMISSION:
In this consolidated contest and penalty proceeding arising
under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
$ 801 et seq (1982), the Commission granted the Secretary of
Labor's petition for discretionary review of a decision by Commission
Administrative Law Judge Joseph B. Kennedy. 1/ The judge's decision,
reported at 6 FMSHRC 781 (March 1984)(ALJ), confirms a prior bench
decision in which he granted a joint motion to approve a settlement.
The issue presented is whether the judge abused his authority through
the manner in which he addressed the settlement agreement and the
circumstances surrounding the issuance of the pertinent citation and
orders of withdrawal. For the reasons that follow, we conclude that
the judge's decision goes beyond the record, includes comments lacking
record support, and constitutes a serious abuse of authority.
Accordingly, we strike the judge's objectionable comments and affirm
his settlement approval on the narrow grounds on which it properly
rests.
I.
Factual Background
Pontiki Coal Corporation ("Pontiki"), a subsidiary of Mapco,
Inc., operates Mine Number Two, an underground coal mine located in
Martin

1/ The Commission is an independent adjudicatory agency established
by Congress to resolve legal disputes under the Mine Act. 30 U.S.C.
$ 823. The Commission is not a part of and is no way connected with
the Department of Labor. Rather, the Department of Labor appears
before the Commission as a party to litigation under the Mine Act.
~669

Page 2

County, Kentucky..2/ On February 28, 1983, an inspection team from
the Department of Labor's Mine Safety and Health Administration
("MSHA") arrived at the mine in order to conduct respirable dust
and ventilation spot inspections. An MSHA inspector was assigned to
check ventilation levels at several main intake/return locations.
This inspector's notes reflect that, prior to their going
underground, Pontiki's mine foreman could not produce any
record books concerning recent preshift/onshift conveyor belt
examinations. From the bottom of the slope outby for a distance
of approximately 100 feet, the inspector observed the presence of
loose coal, coal dust, and float coal dust in the slope conveyor
belt entry. The inspector noted that among other things, the
material had accumulated on top of the conveyor belt pan to a depth
of up to 12 inches surrounding the upper belt in many places. The
conveyor belt was operating at the time. The inspector also noted
several other violative conditions in the area, including a damaged
walkway and handrail and a conveyor belt discharge roller not
provided with a guard.
The inspection party did not proceed inby the No. 1 conveyor
belt air locks, but instead rode a mantrip down the track entry,
past the No. 4 conveyor belt, to an extension of the No. 1 conveyor
belt. The inspector's notes reflect several ventilation readings
and calculations for air flow in that vicinity. His notes show the
presence of an impermissible sump pump in a return air course and the
lack of a check-in/check-out system for supervisory personnel at the
mine. The inspector's notes also show that Pontiki cleaned up the
accumulation on the slope conveyor belt.
As a result of his observations, the inspector issued several
section 104(a) citations to Pontiki for the violative conditions
that he encountered, and held a close-out conference with mine
officials. He designated the accumulation violation as significant
and substantial, but noted that the accumulation appeared to be
spillage and that there was "[v]ery little that management can do
about intermittent spillage." The inspector specified 8:30 a.m. on
March 1, 1983, the next day, as the "Termination Due" date on the
citation for failure to record preshift/ onshift conveyor belt
examinations.
After being issued the recordkeeping citation, the two most
senior Pontiki supervisors present in the mine that day walked along
the conveyor belt lines and filled out an onshift examination report.
According to counsel for Pontiki, the report revealed conveyor belt
rollers in need of repair and accumulations of coal dust and float
coal dust on the No. l and No. 4 conveyor belts. Based on their
report, which was filed at

Page 3

2/ The factual background presented in this decision is derived from
the transcript of the prehearing/settlement conference held before
the administrative law judge on February 7, 1984, and the responses of
the parties to the judge's pre-trial orders of September 7, 1983, and
January 10, 1984. No evidentiary hearing was conducted. After the
Commission directed this matter for review, several unauthorized
documents were struck from the official record. 6 FMSHRC 1131 (May
1984). Those documents have not been considered in deciding this
case.
~670
the end of the daytime production shift on February 28, the mine
supervisor and mine foreman halted production at the mine.
The following day, March 1, 1983, the mine foreman told
employees that there would be no production at the mine that day.
He directed several of them to clean accumulations from around the
No. 1 and No. 4 conveyor belts, change old rollers, replace bottom
rollers, and rock dust the areas following cleanup operations.
At approximately 10:00 a.m. that same day, an MSHA inspection
party returned to the mine and proceeded to walk along the idled
No. 1 conveyor belt. Once past the conveyor belt air locks, they
observed accumulations of loose coal, coal dust, and float coal
dust ranging in depths of up to 40 inches. These conditions existed,
in varying degrees, along the 2,000-foot course of the No. 1 conveyor
belt. In several places, the coal and coal dust had accumulated
until it covered the bottom rollers and touched the bottom belt. The
material ranged from very dry to only slightly moist. The inspector
issued Citation No. 2052746, a section 104(d)(1) citation, alleging a
violation of 30 C.F.R. $ 75.400, as a result of observing these
conditions.
At the same location, the inspector noticed 52 damaged
conveyor belt rollers, numerous places where the conveyor belt
rubbed against the roller bracket to the extent that from 1/4 - to
1/2 - inch of the bracket had been worn away, and the bottom belt
lying on the accumulated material at several locations (in one
instance for a distance of 48 feet). The inspector issued Order
No. 2052747, a section 104(d)(1) order of withdrawal, alleging a
violation of 30 C.F.R. $ 75.1725, based on the unsafe condition of
this conveyor belt.
A Pontiki safety inspector asked whether the MSHA inspectors
could issue a section 107(a) imminent danger order of withdrawal
instead of initiating the section 104(d)(1) "chain." An MSHA
inspector replied that the conditions encountered were significant
and substantial violations resulting from an unwarrantable failure
to comply with applicable standards, but that there was no immediate
source of ignition for the float coal dust. The MSHA inspectors'

Page 4

notes quote the safety inspector as responding, "'We start the belts
if that's what it takes to get a 107(a) order issued." The MSHA
inspectors informed him that the conveyor belt was already under a
withdrawal order.
The MSHA inspectors issued another section 104(d)(1) order
of withdrawal, Order No. 2052748, alleging a violation of 30 C.F.R.
$ 75.404, for lack of any evidence of preshift/onshift conveyor belt
examinations. 3/

3/ In a subsequent modification of this order issued on March 8,
1983, it was noted that some earlier dates and initials were found
in the No. 1 conveyor belt entry, but that no evidence could be found
to indicate that examinations were conducted between February 3 and
February 27, 1983. According to the inspector, 11 to 13 production
shifts were worked during that period as evidenced by Pontiki's
preshift/onshift record books for the two working sections involved.
~671
The inspection party proceeded to walk along the idled
No. 4 conveyor belt. From the No. 4 conveyor belt drive inby for
a distance of 3,800 feet they observed accumulations of loose coal,
coal dust, and float coal dust ranging in depths of up to four inches.
There were numerous piles of such material up to 12 inches in depth.
The material ranged from wet to very dry. As a result of observing
these conditions, the inspectors issued a third section 104(d)(1)
order of withdrawal, Order No. 2052750, alleging another violation
of 30 C.F.R. $ 75.400.
The inspectors' notes of the close-out conference conducted
that day reflect that Dennis Jackson, Pontiki's Vice President for
Operations, stated that the inspectors "were being unfair to the
company." The notes quote Jackson as stating that "he felt [the
inspectors] had 'double-barrelled' them..." The inspector who wrote
this note surmised that Jackson's feelings "were in reference to the
citation on records of belt examinations [and] citations and orders
written on conditions found in the beltline." Jackson abruptly left
the conference, and the inspectors "felt that it was best to leave at
this time."
II.
Procedural History
Of the citations and orders issued during the two days of
inspection, Pontiki contested only the one citation and three
orders of withdrawal issued on March 1, 1983. The subsequently
consolidated contest and penalty proceeding was assigned to Judge
Kennedy. MSHA's Office of Assessments proposed penalties of $2,294
for the four alleged violations. The parties submitted extensive
information in response to the judge's pretrial orders of September 7,

Page 5

1983, and January 10, 1984.
On February 7, 1984,.the parties appeared before the judge
for a prehearing/settlement conference. As a basis for settlement,
counsel for the Secretary of Labor offered to reduce the penalties
proposed to $1,900 for Pontiki's admission of the violations as
written, while Pontiki offered to admit to violations but not to
the section 104(d)(1) "special findings." The judge found neither
offer acceptable. At the conclusion of the conference, the parties
agreed to a settlement agreement proposed by the judge. He issued
a bench decision approving the settlement agreement. 4/
The written decision of March 30, 1984, confirms the prior
bench decision. Under the terms of the settlement agreement, Pontiki
agreed to pay a civil penalty of $7,500 to be allocated among the
four violations as the judge deemed appropriate. Tr. 59; 6 FMSHRC
at 786. (The judge suggested that he had "remitted" $3,000 from a
previously suggested penalty of $10.500 in exchange for a letter from
the operator admonishing the responsible individuals. Id Tr. 58-60).

4/ In his PDR, the Secretary seems to suggest that the parties may
not actually have "moved" for such a settlement. However, the
Secretary trial counsel not only made no objection to the "settlement"
terms as described by the judge, he indicated that the judge's
recitation of the "settlement" was "agreeable" Tr. 59-60.
~672
In addition to recapitulating the settlement terms, however,
the judge's decision also set forth an extended discussion of his
view of the "facts" surrounding the issuance of the citation and
orders of withdrawal. The judge stated that because the MSHA
inspectors had "noted" Pontiki's failure to record the results of
preshift/onshift conveyor belt examinations on February 28, 1983,
"this should have alerted them to conduct a physical examination
of these areas." 6 FMSHRC at 782. The judge termed the inspection
sequence employed a "dereliction" because, by only inspecting near
the slope bottom before proceeding down the track entry on a
personnel carrier, the inspectors failed to observe or cite Pontiki
for "enormous" accumulations of combustible material. Id.
The judge declared:
The record strongly suggests that the reason
the inspectors were "persuaded" to tour around the
main beltline and ignore the "message" of the
omitted preshift and onshift reports was to permit
the operator to run coal for one more shift and
management to" voluntarily" idle the mine and begin
cleanup operations. Indeed, the record shows that
in return for the "advance notice" of the "spot"

Page 6

inspection that did not begin in earnest until March 1,
1983, the operator idled its production at 3:30 p.m.
on Monday, February 28 and began cleanup. The record
also shows that in return for the operator's "cooperation"
the inspectors expected to issue only 104(a) citations
but were so appalled by the conditions actually
encountered they felt compelled to issue unwarrantable
failure citations and closure orders.
6 FMSHRC at 783 (footnote omitted). The judge further asserted that
at the time the MSHA inspectors issued the section 104(d)(1) citation
on March 1, they were "no longer willing to turn a blind eye to the
conditions encountered." 6 FMSHRC at 783 n. 2. He stated that as a
result of this action, "the operator's vice president for operations
... felt he had been double crossed or 'double barrelled' as he put
it." 6 FMSHRC at 783.
The judge was critical of MSHA, in that the agency had declined
to specially assess the violations or refer them for a determination
of whether "knowing" or "willful" violations had been committed.
6 FMSHRC at 784-85. He condemned MSHA for its "cheaper by the dozen"
policy of lumping multiple discrete violations into one citation and
three orders of withdrawal and for the fact that the Solicitor had
offered to "reward" Pontiki for challenging the violations by
"discount[ing]" his proposed penalties. 6 FMSHRC at 784. The
judge likened MSHA's lack of oversight of the Pikeville and
Paintsville district offices to the type of "callous indifference and
dereliction" at Pikeville that led to the 1976 Scotia Mine disaster
in which 26 people had lost their lives. 6 FMSHRC at 784-85.
~673
Warming to his theme, the judge stated:
The true circumstances surrounding the truncated
inspection of the beltline on February 28 cry out for
investigation and explanation. The public is entitled
to know what occurred on that date that later led the
operator's vice president for operations to feel he had
been "spun" or "double barreled" by MSHA. Was there a
hidden quid pro quo for the abbreviated inspection of
the beltline on February 28, and, if so, what was it?
Was the abbreviated inspection of the beltline designed
to alert the operator to the real inspection that
commenced the next day? Or was MSHA innocent to the
point of naivete? And, if so, what is the public to
conclude about MSHA's capacity to serve as a sophisticated
enforcement agency? I believe these and other questions
deserve an answer.
6 FMSHRC at 785.

Page 7

The judge recommended "that this matter be referred to the
inspector general of the Department of Labor for a full and true
disclosure of the facts relating to MSHA's failure to inspect the
beltlines in question on February 28, 1983." 6 FMSHRC at 785. He
also recommended "that this case be referred to the MSHA's office of
special investigations for a determination of liability on the part
of the operator or any [of] its employees under sections 110(c) and/or
(d) of the Act." Id. The judge stated that he had "probable cause
to believe" that Jackson knew of the existence of the violative
conditions and of their gravity prior to February 28, 1985. Id. He
stated, "[I]ronically, [this] is the same individual whom counsel
represented would take disciplinary action against the mine foreman
allegedly responsible for the violation" and, if he did so, "it must
have been done with tongue-in-cheek." Id.
In closing, the judge ordered the settlement agreement
approved, allocated the $7,500 in civil penalties equally among the
four violations, and ordered the Commission to take such action as
it deemed appropriate to refer the matter to the Assistant Secretary
of Labor for Mine Safety and Health in order to initiate the two
investigations that he felt were justified on the above facts.
6 FMSHRC at 786.
On May 8, 1984, the Commission granted the Secretary's
petition for discretionary review. According to that pleading, the
Secretary took the "unusual step" of petitioning the Commission for
review of a decision approving a settlement "because of the egregious
nature of many statements contained in that opinion and the fact that
the integrity of certain individuals has been unfairly maligned."
Sec. PDR and Br. at 5. The Commission granted the Secretary's
petition and, as a result of "the serious allegations of possible
criminal misconduct by federal employees and officials" contained in
the judge's submissions, the Commission, sua sponte, also referred the
matter to the Department of Justice for "appropriate action." Letter
to the Attorney General from the Commission's
~674
General Counsel dated May 18, 1984. Pending a resolution of its
referral, the Commission deferred any further action in this case.
It was on this ground that the Commission subsequently denied the
Secretary's motion for expedition of his appeal. Commission Order
dated June 18, 1985. After directing the case for review and making
its referral to the Department of Justice, the Commission struck a
number of documents from the official record. 6 FMSHRC 1131 (May
1984). The Commission also struck, as not being part of the record
before the judge, the affidavit and memorandum attached to the
Secretary's petition for discretionary review. Id.
The Public Integrity Section of the Department of Justice's

Page 8

Criminal Division responded conclusively to the Commission's
investigative referral by letter dated May 2, 1986. The letter
states that the "allegations made by Administrative Law Judge Joseph
Kennedy about possible bribery or the giving of advance notice of mine
inspections by [MSHA] inspectors" were subjected to a "limited inquiry
to determine whether sufficient evidence existed to initiate a full
investigation...." The letter concludes, "Based upon the results of
that inquiry, we decided that further criminal investigation is not
warranted, and we have closed the matter as to the allegations of
bribery and advance notice."
III.
Disposition
The Secretary argues that the judge abused his authority by
addressing in his published decision matters far beyond the scope
of the proceeding below, making numerous statements and findings
unsupported by any evidence, and venturing comments that are
defamatory, derogatory, and inappropriate. Relying on the
Commission's decision in Inverness Mining Co., 5 FMSHRC 1384
(August 1983), the Secretary requests that most of the text of the
judge's decision be stricken.
Settlement of contested issues is an integral part of dispute
resolution under the Mine Act. Section 110(k) of the Act provides
that no contested proposed penalty "shall be compromised mitigated,
or settled except with the approval of the Commission. 30 U.S.C.
$ 820(k). See also Commission Procedural Rule 30, 29 C.F.R.
$ 2700.30. In Knox County Stone Co., Inc. 3 FMSHRC 2478 (November
1981), the Commission described some of the outer boundaries" of the
authority its judges possess in settlement adjudication. While noting
that a judge's over-sight of the settlement process is an adjudicative
function that involves wide discretion, the Commission observed that
the scope of that discretion is not unlimited. 3 FMSHRC at 2479. The
Commission stated:
Rejections [of settlement], as well as approvals,
should be based on principled reasons. Therefore, we
[have] held that if a judge's settlement approval or
rejection is "fully supported" by the record before him,
is consistent with the statutory penalty criteria, and is
not otherwise
~675
improper, it will not be disturbed. In reviewing
such cases, abuses of discretion or plain errors
are not immune from reversal.
3 FMSHRC at 2480 (citations omitted).
The Commission previously has warned Judge Kennedy not to
indulge in settlement "approval" decisions roaming far beyond the

Page 9

limited records typically involved in the settlement process.
Inverness Mining, supra, 5 FMSHRC at 1388-89. As the Commission
has stated repeatedly, if a judge disagrees with a stipulated
penalty amount or believes that any questionable matters bearing on
the violation or appropriate penalty amount need to be clarified
through trial, he is free to reject the settlement and direct the
matter for hearing. Knox County, supra, 3 FMSHRC at 2481-82; Tazco,
Inc., 3 FMSHRC 1895, 1898 (August 1981). The process followed by
Judge Kennedy in the present case violated these well-established
principles.
At the close of the prehearing/settlement conference -- during
which, we emphasize, no evidentiary testimony had been developed --
Judge Kennedy issued a bench decision approving the settlement agreed
to by the parties. Tr. 59-60. According to the terms of that oral
agreement, as related by Judge Kennedy on the record, the only issues
disposed of were those contested by the parties -- namely, the
violations reflected in the citation and orders of withdrawal, the
appropriate civil penalty, and the "letter of admonition" required by
the judge before he would approve the settlement agreement. At this
stage of the proceedings, it should have been clear to Judge Kennedy
that his written decision would be limited in scope by the abbreviated
dispute resolution mechanism employed by the parties and approved by
him. Instead, his subsequent written decision addressed numerous
matters beyond the scope of the parties' settlement agreement and the
scant -- and untried -- record in this matter.
The pre-trial submissions offered in this proceeding, upon
which the judge's decision purports to rest, were made in response
to the judge's pre-trial orders. Not only do they lack the
evidentiary character of testimony and evidence offered at a hearing
and subjected to the crucible of cross-examination and trial, they
also do not provide support for any of those portions of the decision
sought to be stricken by the Secretary. The limited nature of these
submissions reinforced the need for the judge to limit himself to the
confines of the issues resolved, or fairly touched on, by the mutual
consent of the parties. Inverness Mining, 5 FMSHRC at 1388. Cf. ABC
Air Freight Co. v. CAB, 391 F.2d 295, 305 (2d Cir. 1968), cert.
denied, 397 U.S. 1006 (1970).
We proceed to examine the judge's various objected-to
pronouncements seriatim. We find all of them lacking in record
support.
A. Improper advance notice
The record reveals that during the inspection conducted on
February 28, 1983, an MSHA inspector issued a citation for failure
to record preshift/ onshift conveyor belt examinations. On the face
of the citation, the

Page 10

~676
inspector specified 8:30 a.m., the next day, March 1, 1983, as
the "Termination Due" date for the record-keeping citation. The
establishment of a specific due date for abatement is a statutory
requirement of the Mine Act. 30 U.S.C. $ 814(a). To construe such a
legal requirement as an improper "advance notice" that an inspection
will be conducted at that time defies reason.
Among other things, the purpose of a specific abatement due
date is to put the operator on notice as to when the enforcement
authority requires the alleged violation to be corrected. Therefore,
it is logical for an operator to assume that a further inspection
may be conducted on or shortly after that date to ascertain that the
condition, in fact, has been corrected. Moreover, the statements of
Pontiki's counsel in response to the judge's questioning on this issue
provide no basis for a finding of advance notice. Tr. 54-55. Absent
anything more in the record to support his assertion, we conclude that
the judge's insinuations of improper advance notice lack support in
the present record. Cf. Inverness Mining, 5 FMSHRC at 1388.
B. Bribery
Judge Kennedy queried whether there was "a hidden quid pro quo
for the abbreviated inspection of the beltline on February 28."
6 FMSHRC at 785. He also asked what had led Dennis Jackson,
Pontiki's Vice President of Operations, to feel that he had been
'"spun," "double crossed or 'double barrelled' as he put it."
6 FMSHRC at 783, 785. The tone of these "queries," which relate
to possible criminal conduct, renders the judge's statements as
declarative as they are interrogative in nature. The Secretary
argues that the judge incorrectly equated the term "double-barrelled"
with the term "double-crossed."
In common parlance, the term "double-barrelled" means receiving
a measure of something that is, perhaps in excess of that required.
Nowhere does the term "double-crossed appear in the record. Rather,
the existing record tends to show that when Jackson used the term
"double-barrelled," he did so in the context of Pontiki's having
received a citation for failure to maintain records of
preshift/onshift conveyor belt examinations as well as a subsequent
order of withdrawal for lack of evidence that the examinations had
actually been made. There is nothing in the record affording a shred
of support to the judge's innuendo of bribery.
C. Lax Enforcement
Throughout the body of his decision, the judge directly or
indirectly stated that MSHA's inspection at the Pontiki Mine Number
Two constituted lax enforcement. 6 FMSHRC at 782-86. The Secretary
argues that the judge should have notified the parties of his
intention to address this issue in the context of the citation and

Page 11

orders. We agree. The issue of lax enforcement was not within the
scope of the settlement agreement and the Secretary was not given an
adequate opportunity to establish a record on this issue.
~677
We also conclude that a finding of lax enforcement does not
necessarily follow from the pre-trial submissions made by the parties.
It is true that during their February 28, 1983 spot inspection, the
MSHA inspection team did not observe or cite all of the accumulations,
equipment. and inspection violations that then existed at the mine.
Other violations discovered by them were, however. cited on that date.
Absent a hearing at which their explanatory testimony could have been
taken. the judge's postulates of corruption or naivete hardly exhaust
the universe of possible explanations, and amount to no more than
personal, unsupported, damaging speculation.
D. Accusations of criminal conduct and defamatory comments
The judge's decision contains a number of statements that the
Secretary argues are defamatory, derogatory, and inappropriate.
While fair and supported criticism of MSHA or any other party
appearing before the Commission at times may be appropriate, the
judge overstepped proper bounds by stating or implying that the
inspectors provided advance notice of an inspection intentionally
ignored hazardous conditions, arranged some type of unethical or
illegal deal with Pontiki, and received something in return for their
willingness to accommodate the operator. .= our previous discussion
indicates, these statements are not supported by the extant record.
We are particularly disturbed by the judge's allegations of
advance notice and bribery. These are federal criminal offenses.
As the Commission observed in another case involving unfounded
criminal accusations by Judge Kennedy:
Any accusation of criminal conduct is a grave matter,
not to be undertaken lightly, especially by a jurist
schooled in the law and aware of the requirements of
due process.
Belcher Mines, Inc., 7 FMSHRC at 1019, 1022 (July 1985)(emphasis in
original). In Belcher, the Commission held that by attacking the
personal reputations of individuals and by accusing them of criminal
activity:
Judge Kennedy assumed the conflicting roles of
grand jury, prosecutor, jury, and presiding judge.
Jurisdiction over federal criminal matters resides
with the United States Department of Justice and the
federal criminal justice system. If Judge Kennedy
had reason to believe that crimes had been committed,
he should have referred the matter to the appropriate
authorities at the Department of Justice.

Page 12

7 FMSHRC at 1025.
~678
In this case, the Commission itself referred Judge Kennedy's
allegations to the Department of Justice for further proceedings.
The Department of Justice conducted a limited inquiry and ultimately
concluded that further criminal investigation was not warranted.
While the judge did not specifically name all of the individuals
accused in his decision, the fact remains that in a rural, coal-mining
region, the identity of the individuals concerned could readily be
determined. In this regard, the Secretary has asked the Commission to
take official notice of two front-page newspaper articles that
appeared in the local press as a direct result of Judge Kennedy's
written decision. We do so, and further note that the reports contain
inaccurate statements misconstruing the statutory roles of the
Commission and its administrative law judges and the limited scope of
the record developed before Judge Kennedy in this proceeding. These
press reports highlight the inexcusable damage that can be done to
personal and professional reputations when criminal accusations are
disseminated in public decisions. What makes such abuse especially
egregious in this instance is the fact that Judge Kennedy's charges
and criticism lack support in the record before him.
IV.
Conclusion
The foregoing is not to say that Commission judges do not
possess considerable latitude to comment officially on relevant
matters in the public record when the evidence before them and the
circumstances warrant appropriate comment. The record in this case
discloses that the cited violations were serious indeed. Pontiki's
Mine Number Two is classified as a gassy mine, and the cited
violative conditions were cause for grave concern. The Secretary
initially proposed penalties totalling S2,294, which he was prepared
to compromise to $1,900. In our view, either figure is inadequate
under the circumstances, and the judge rightfully rejected them under
section 110(k). We find that the $7,500 penalty settlement approved
by the judge is supported by the record and is consistent with the
statutory penalty criteria. Had the judge contented himself with
assessing an appropriate penalty and had he limited his comments in
doing so to the record developed before him, his duties under the
Mine Act would have been discharged properly.
~679
Accordingly, we conclude that Judge Kennedy's objectionable
comments discussed above lack record support and are unwarranted.
As noted, the judge's allegations of unlawful activity were referred
to the proper authorities, who concluded that prosecutorial action
was unwarranted. We affirm the judge's settlement approval on the

Page 13

narrow grounds on which it properly rests, and strike all but the
first sentence of the last paragraph of his decision, which reads as
follows: "Accordingly, it is ORDERED that the settlement approved at
the prehearing/settlement conference of February 7, 1984, be, and
hereby is CONFIRMED, and that the settlement amount agreed upon and
paid, $7,500, be allocated equally among the four violations
found." 5/
Richard V. Backley, Commissioner
Joyce A. Doyle, Commissioner
James A. Lastowka, Commissioner
L. Clair Nelson, Commissioner

5/ Chairman Ford did not participate in the consideration or
disposition of this matter.
~680
Distribution
Ann Rosenthal, Esq.
Barry Wisor, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Nick Carter, Esq.
Pontiki Coal Corporation
MAPCO, Inc.
2365 Harrodsburg Road
Suite B410
Lexington, Kentucky 40504
Administrative Law Judge Joseph Kennedy
Federal Mine Safety and Health Review Commission
5203 Leesburg Pike, lOth Floor
Falls Church, VA 22041