Southwestern Portland Cement Company (ALJ decision, December 9, 1981)

Plain-English summary

Southwestern Portland Cement Company paid the full proposed $200 civil penalty and withdrew its contest. The Secretary asked to withdraw the penalty proposal and dismiss the case. Judge Charles C. Moore, Jr. treated the arrangement as a settlement subject to Commission settlement standards despite the form of the motion. The underlying matter involved a fatal accident, but the judge said the assessment and accident reports indicated that the company was not responsible for it. He accepted the $200 amount, granted the motion, and dismissed the case.

Decision snapshot

• Cited standard(s): None identified in this order.
• Outcome: Full proposed $200 payment accepted; motion to withdraw granted and case dismissed.
• Key point: A payment and withdrawal of contest remained subject to settlement review regardless of how the parties styled the motion.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) v. SOUTHWESTERN PORTLAND
DDATE:
19811209
TTEXT:
~2806
Federal Mine Safty and Health Review Commission Office of Administrative Law Judges

SECRETARY OF LABOR,
Civil Penalty Proceeding
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket No. LAKE 81-117-M
PETITIONER
A/O No. 33-00161-05011F
v.
Fairborn Plant Mine
SOUTHWESTERN PORTLAND CEMENT
COMPANY,
RESPONDENT

DECISION

The Secretary has filed a motion to withdraw its penalty proposal and dismiss this case. His motion is not filed because there is some infirmity in the case, but because Respondent has tendered the full amount of the proposed assessment and "withdrew its Notice of Contest of the Civil Penalty ...." The Secretary relies on the Commission's decision in Secretary of Labor v. Mettiki Coal Corp., Docket No. YORK 80-140 (Oct. 16, 1981).

I am not sure what the Commission intended by its Mettiki opinion, but there are clearly some things that it did not intend. It did not intend to indicate that the fact that the amount of the penalty the Respondent proposed to pay was the same as the "proposed assessment" was of great significance. And it did not hold that the parties could circumvent the Commission's settlement procedures by trying to accomplish by motion to withdraw what they could not do by a motion to approve settlement. Regardless of the form, this is in essence a settlement and the same standards apply.

In the instant case there was a fatal accident but it appears from the special assessment and the accident report that Respondent was in no way responsible. It appears to be a "no fault" violation and the nominal $200 assessment seems reasonable. I would have approved this amount if the motion had been for settlement approval and I will approve it by granting the motion.

The motion to withdraw is granted and the case is DISMISSED.

Charles C. Moore, Jr.
Administrative Law Judge