Secretary of Labor (MSHA) v. Shamrock Coal Co., Inc. (ALJ decision, October 24, 1983)

Plain-English summary

MSHA filed a civil penalty proposal against Shamrock Coal Co. for its No. 18 Mine. The company sought to withdraw its hearing request after an MSHA district manager said the item should receive a regular penalty assessment instead of a special assessment. Chief Judge Paul Merlin held that, once the proposal was filed, the Commission had exclusive jurisdiction to assess the penalty and the district manager could not change it. He denied withdrawal and ordered the Solicitor to report within 45 days whether the parties could settle or a hearing was needed. The order does not decide the alleged violation or set a penalty.

Decision snapshot

• Cited standard: Not identified in the order.
• Outcome: Operator's withdrawal request denied; Solicitor directed to report case status within 45 days.
• Key point: After a penalty proposal is filed with the Commission, the agency district manager cannot replace Commission assessment with an administrative reassessment.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. SHAMROCK COAL
DDATE:
19831024
TTEXT:
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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. KENT 83-207
PETITIONER
A.C. No. 15-02502-03507

v. No. 18 Mine

SHAMROCK COAL CO., INC.,
RESPONDENT

DENIAL OF OPERATOR'S REQUEST TO WITHDRAW

ORDER TO SOLICITOR TO SUBMIT
SETTLEMENT MOTION OR INFORMATION

On May 5, 1983, the Solicitor filed a penalty proposal in the above-captioned action. The operator failed to answer and on September 14, 1983, I issued a show cause order.

By letter dated September 22, 1983, the operator advises it wishes to withdraw its request for hearing enclosing a copy of a memorandum dated September 6, 1983, written by the MSHA District Manager, Barbourville, Kentucky to an MSHA official stating that this order should not have been specially assessed. The District Manager requests that this item be assessed under the regular formula.

After the penalty proposal was filed by the Solicitor, this Commission had exclusive jurisdiction under the Act. The only way a penalty now can be approved and assessed is by the Commission under section 110 of the Act. The District Manager had no authority to act as he did. The operator's motion to withdraw must therefore be Denied.

It appears that the most expeditious way to handle this matter would be for the Solicitor to discuss the matter with the operator in order to determine if the matter can be appropriately settled. If so, the Solicitor then should file a settlement motion. If the matter cannot be settled, the Solicitor should advise me so the case can be assigned and set down for hearing.
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Accordingly, it is Ordered that the Solicitor advise me of the status of this case within 45 days of the date of this order.

Paul Merlin
Chief Administrative Law Judge