Ezel / Agency Decisions / LAKE 80-358

Secretary of Labor v. Old Ben Coal Company (ALJ decision, October 29, 1980)

Old Ben Coal Company (FMSHRC LAKE 80-358): Penalty petition withdrawn without prejudice

Decision type
ALJ decision
Docket
LAKE 80-358
Decided
October 29, 1980
Presiding judge
Edwin S. Bernstein
Outcome
Procedural
Precedential status
Final order, not precedent
Checked against source
2026-10-23
Cited standards
29 C.F.R. § 2700.11
Official source
Read the official release (fmshrc.gov)
PDF
View Official PDF

Apply this to your situation

This order from 1980 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.

Currency note: this decision dates from 1980
The MSHA standards may have been amended, penalty amounts have been adjusted, and later Commission or court decisions may have changed the analysis since then. Treat this page as historical context, not current compliance advice. Verify the current standard before relying on any specific rule, threshold, or penalty mentioned here.
Final ALJ decision, not Commission precedent
This decision became final under the 40-day rule in 30 U.S.C. § 823(d)(1) because no later Commission review appears in the official index. It binds the parties but is not binding on the Commission in other cases. The full text below is from the official FMSHRC release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official FMSHRC release. The full text is the agency's own release.
Read the official release (fmshrc.gov)

Plain-English summary

The Secretary asked to withdraw a civil penalty petition against Old Ben Coal without prejudice. The motion said an independent contractor controlled the cited worksite, no Old Ben employees were shown to have been exposed, and the contractor could be served. Judge Edwin S. Bernstein granted the withdrawal under the Commission's pleading rule and dismissed this case without prejudice. The order did not decide whether the contractor had violated a safety standard or assess a penalty.

Decision snapshot

  • Cited rule: 29 C.F.R. § 2700.11, governing withdrawal of pleadings.
  • Outcome: Secretary's penalty petition withdrawn; case dismissed without prejudice; no penalty assessed.
  • Key point: The Secretary could consider a proceeding against the independent contractor after withdrawing this petition.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. OLD BEN COAL
DDATE:
19801029
TTEXT:
~3164

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. LAKE 80-358
PETITIONER A.O. No. 12-00329-03012

v. Mine: Old Ben No. 2 Strip

OLD BEN COAL COMPANY,
RESPONDENT

ORDER OF DISMISSAL

Petitioner moved to withdraw its petition for a civil penalty in this matter "without prejudice, and with leave to the Secretary to initiate proceedings against the independent contractor." The motion stated that the worksite where the subject citation was issued was under the control of an independent contractor. It also stated that there is no evidence that any employees of Respondent were exposed to the cited condition, and that Petitioner has no reason to believe that the independent contractor cannot be served.

Commission Rule 11, 29 C.F.R. 2700.11, allows a party to "withdraw a pleading at any stage of a proceeding with the approval of the Commission or the Judge." Based on the reasons set forth in the motion, the Motion is GRANTED and this case is DISMISSED WITHOUT PREJUDICE.

Edwin S. Bernstein
Administrative Law Judge

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