The Ohio Valley Coal Co.

Plain-English summary

The Secretary proposed a $1,270 civil penalty for an alleged violation of 30 C.F.R. § 75.220(a)(1), and the parties jointly asked the Judge to approve a $765 settlement. The Judge questioned whether the settlement improperly counted the operator's prompt abatement twice when calculating the penalty. Rather than approve or reject the agreement immediately, the Judge ordered the parties to show cause by April 27, 2001, why the settlement should be approved and the proceedings should not be dismissed. The order left the settlement and final penalty unresolved.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.220(a)(1)
• Outcome: The parties were ordered to show cause why the proposed $765 settlement should be approved.
• Key point: A settlement must be consistent with the Mine Act's penalty criteria and cannot appear to double count prompt abatement.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                       OFFICE OF ADMINISTRATIVE LAW JUDGES
                                2 SKYLINE, Suite 1000
                                5203 LEESBURG PIKE
                           FALLS CHURCH, VIRGINIA 22041


                                     March 28, 2001

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) : Docket No. LAKE 2001-1
Petitioner : A.C. No. 33-0159-04153
:
v. :
:
THE OHIO VALLEY COAL CO., : Powhatan No. 6 Mine
Respondent. :

                              ORDER TO SHOW CAUSE

    This case is before me on a Petition by the Secretary to assess a Civil Penalty for the

alleged violation of 30 C.F.R. § 75.220(A)(1). The Petition proposed a Civil Penalty of
$1,270.00. After an answer was filed, I issued a Prehearing Order to direct the parties to first
confer concerning the possibility of settlement and, if settlement proved impossible, to report to
me concerning their respective positions on the legal and factual merits. On March 15, 2001,
I received a Joint Motion to Approve Settlement and Dismiss Proceedings. The settlement
agreement explained in the Motion proposed a Civil Penalty of $765.00. The only reason
given for the reduction in the proposed Civil Penalty was the action of the Respondent in
promptly abating the violation as instructed. A review of Exhibit A attached to the Petition
indicates that the proposed Civil Penalty of $1,270.00 was calculated by giving a credit of
$445.00 for promptly abating the violation as instructed.

   The concepts articulated by Judge Merlin in Secretary of Labor v. Marc Bowers, etc.,

21 FMSHRC 409 (Mar. 1999) would appear to make it inappropriate for me to approve a
settlement which is not consistent with the criteria in Section 110 of the Federal Mine Safety
Act. In this case it appears that the proposed settlement is calculated by double counting the
abatement efforts of the mine operator. Double counting would not appear to be consistent with
Section 110. Since my prospective is based on a review of less than the record available to
Counsel, I consider this to be only a tentative conclusion. The parties should have the
opportunity to explain and support their agreement. It is, therefore,

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   ORDERED that the parties are given until April 27, 2001, to Show Cause why the

settlement agreement should not be disapproved and why the Motion to Approve Settlement
should not be denied. The parties may file legal argument or factual information as they
consider necessary. An opportunity for oral argument by telephone conference call will be
granted upon request. In the absence of a showing of sufficient cause for approval of a
settlement agreement, this case will be scheduled for hearing on an expedited basis.

                                             Irwin Schroeder
                                             Administrative Law Judge
                                             703-756-5232

Distribution:

Maya K. Ewing., Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn St.,
8th Floor, Chicago, IL 60604 (Certified Mail)

Jerry M. Taylor, Safety Director, The Ohio Valley Coal Company, 56854 Pleasant Ridge Rd.,
Alledonia, OH 43902 (Certified Mail)

/mh

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