Penn Allegh Coal Co., Inc. (ALJ decision, December 16, 1981)

Plain-English summary

The Secretary asked Judge Joseph B. Kennedy to approve a $1,400 settlement covering seven citations against Penn Allegh Coal Co., Inc. That amount was 48 percent of the penalties originally assessed. The Secretary pointed to Penn Allegh's reliance on an earlier judge's decision that the cited standard was unenforceable, although the Commission had reversed that decision, and to its participation in an equipment retrofit program. The judge approved the settlement and ordered Penn Allegh to pay $1,400 by January 4, 1982. The order does not identify the cited standard by number.

Decision snapshot

• Cited standard(s): The order refers to a cited standard but does not identify it by number.
• Outcome: Settlement approved for seven citations; $1,400 payable by January 4, 1982.
• Key point: The ALJ accepted the reduced penalty agreement after the earlier unenforceability ruling had been reversed.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) v. PENN COAL
DDATE:
19811216
TTEXT:
~2810
Federal Mine Safety and Health Review Commission Office of Administrative Law Judges

SECRETARY OF LABOR,
Civil Penalty Proceedings
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket No. PENN 81-154
PETITIONER
A.O. No. 36-02581-03043
v.
Docket No. PENN 81-183
PENN ALLEGH COAL CO., INC.,
A.O. No. 36-02581-03044
RESPONDENT
Allegheny No. 2 Mine

ORDER

Counsel for the Secretary has filed a motion for approval of a settlement agreement in the amount of $1400, 48% of the amount originally assessed for the seven citations at issue. As grounds for this reduction the Secretary cites the respondent's allegedly mistaken reliance on the April 7, 1978 decision of the Administrative Law Judge declaring the cited standard null, void and unenforceable. That decision has been reversed by the Commission.(FOOTNOTE.1) In addition, the respondent is now participating in a program to retrofit its equipment with cabs or canopies.

In light of the recent Commission decision holding that the defense of diminution of safety is unavailable where the operator has not filed a prior petition for modification, regardless of the danger enforcement of the standard may present to the miners,(FOOTNOTE2) the defense raised by the operator has been foreclosed. While it appears that the Commission was without authority or jurisdiction to consider the issue it found dispositive, namely the claimed unavailibility of the "diminution ~2811 of safety" defense in an enforcement proceeding, there is no necessity to pursue the consequences of that further in this proceeding.(FOOTNOTE.3)

Accordingly, it is ORDERED that for good cause shown the motion to approve settlement be, and hereby is, GRANTED. It is FURTHER ORDERED that the operator pay the penalty agreed upon, $1400.00, on or before Monday, January 4, 1982.

Joseph B. Kennedy
Administrative Law Judge
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
~FOOTNOTE_ONE
Secretary of Labor v. Penn Allegh Coal Co., Inc., 3 FMSHRC 1392 (June 29, 1981). See also, Secretary of Labor v. Sewell Coal Co., 3 FMSHRC 1402 (June 29, 1981).

~FOOTNOTE_TWO
Id. at 1398-99.

~FOOTNOTE_THREE
Under the Mine Safety Law the Commission does not have de novo review powers. Section 113(d)(2)(iii)(A) and (B) of the Act precludes review of any issue not raised before the administrative law judge or covered by the Order Directing Review. In Labor v. Penn Allegh, supra, the record shows and the Commission's decision admits that the issue concerning the "diminution of safety" defense was raised by the Commission sua sponte and that neither the trial judge nor the parties were afforded an opportunity to pass on the matter. Compare, Brown & Root, Inc. v. Marshall, ___ F.2d ___, 1981 OSHD Par. 25,741, p. 32110 (5th Cir. 1981); McGowan v. Marshall, 604 F.2d 885, 889 (5th Cir. 1979).