Penn Allegh Coal Co., Inc. (ALJ decision, December 7, 1981)

Plain-English summary

After a Commission remand, Penn Allegh Coal Co., Inc. and the Secretary asked Judge Joseph B. Kennedy to settle a civil penalty case. They proposed reducing the penalty from $106 to $25. The judge questioned the scope of the Commission's earlier review of a diminution of safety defense but found no need to pursue that issue in this settlement order. He approved the agreement and ordered Penn Allegh to pay $25 by December 28, 1981. The order does not identify the underlying cited standard.

Decision snapshot

• Cited standard(s): None identified in this order.
• Outcome: Post-remand settlement approved; penalty reduced from $106 to $25.
• Key point: The judge ended the remanded penalty case by approving the parties' agreed amount.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) v. PEN ALLEGH COAL
DDATE:
19811207
TTEXT:
~2791
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. PITT 78-97-P
PETITIONER
v. Allegheny No. 2 Mine

PENN ALLEGH COAL CO., INC.,
RESPONDENT

DECISION AND ORDER

After remand, this matter is before me on the parties' motion to approve settlement of this much protracted litigation at a reduction in the penalty from $106 to $25.00.

While it appears that the Commission was without authority or jurisdiction to consider the issue it found dispositive, namely the claimed unavailability of the "diminution of safety" defense in an enforcement proceeding, there is no necessity to pursue the consequences of that further in this proceeding0. (FOOTNOTE.1)

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, $25.00, on or before Monday, December 28, 1981.

Joseph B. Kennedy
Administrative Law Judge
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
~FOOTNOTE_ONE
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 this case 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).