Tanks Unlimited, Incorporated (ALJ decision, February 7, 1990)

Plain-English summary

Tanks Unlimited admitted the allegations and special findings associated with Citation Nos. 3038257 and 3038259. At the penalty hearing, the company presented evidence that it was out of business and had about $500 remaining after criminal fines and legal expenses arising from earlier accidents, including one involving the company. The parties proposed that the company pay the full $500 assessed for Citation No. 3038257 and that Leroy Dunkin personally pay $500 toward the $3,000 assessed for Citation No. 3038259. Judge Roy J. Maurer approved the settlement and ordered the company and Dunkin to pay $1,000 within 30 days, after which the case would be dismissed.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(d)
• Outcome: The settlement was approved, with $1,000 payable within 30 days and dismissal after full payment.
• Key point: The judge approved a reduced settlement after the operator admitted the allegations and presented evidence of its financial condition.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. TANKS UNLIMITED
DDATE:
19900207
TTEXT:

Page 2

~215
Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.) Office of Administrative Law Judges

SECRETARY OF LABOR,
CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket No. LAKE 89-79
PETITIONER
A.C. No. 12-00332-03501

v. Minnehaha Mine

TANKS UNLIMITED, INCORPORATED,
RESPONDENT

DECISION
Appearances: Miguel J. Carmona, Esq., U.S. Department of Labor, Office of the Solicitor, Chicago, Illinois, for the Petitioner;
Henry Y. Dein, Esq., Indianapolis, Indiana, for the Respondent.

Before: Judge Maurer

This case is before me upon a petition for assessment of civil penalty under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801, et seq., (the Act).

Pursuant to notice, a hearing was convened in Indianapolis, Indiana on January 3, 1990. At that hearing, the respondent, by counsel, admitted all the allegations contained in the petition with regard to Citation Nos. 3038257 and 3038259, including the fact of violation and all the special findings that the inspector included in the two citations.

The remainder of the hearing concerned the financial status of the corporation as it exists at this time. Mr. Leroy Dunkin, the President of the corporation, was called and testified to the effect that because of the two accidental deaths involving the company since 1987, including the one herein involved, the corporation is out of business and broke.

As a result of the earlier fatal accident, criminal proceedings were instituted against both the corporation and Mr. Dunkin, personally. As a result of those proceedings, the corporation, through its officers, entered a plea of guilty and a

Page 3

~216
$13,500 fine was paid. The legal expenses of that proceeding approached $80,000, for both the corporation and its officers, exhausting the corporate treasury. Approximately $500 is left at the present time.

The settlement of this case that the parties proposed was that respondent would pay the $500 civil penalty that has been assessed for Citation No. 3038257 in its entirety out of the remainder of the corporate assets and that an additional $500 of the $3000 assessed for Citation No. 3038259 would be paid by Mr. Dunkin, personally.

I approved that motion at the hearing and pursuant to the Rule of Practice before this Commission, this written decision confirms the bench decision I rendered at the hearing, approving the settlement.

WHEREFORE IT IS ORDERED that the respondent, and by agreement, Mr. Leroy Dunkin, personally, are responsible for and shall pay the approved civil penalty of $1000 within 30 days of this decision. Upon receipt of payment in full by the Secretary, this case is dismissed.

Roy J. Maurer
Administrative Law Judge