Morgan Corporation

Plain-English summary

The Commission approved a joint settlement between Morgan Corporation and the Secretary in a civil-penalty proceeding. The ALJ had found a violation of former 30 C.F.R. § 56.9005 and assessed a $1,000 penalty, but that standard had been superseded by 30 C.F.R. § 56.14200. The Commission found adequate cause to approve the settlement, vacated the underlying citation and penalty, vacated its direction for review, and dismissed the proceeding.

Decision snapshot

• Governing standards: Former 30 C.F.R. § 56.9005 and replacement 30 C.F.R. § 56.14200.
• Outcome: The settlement was approved, the citation and $1,000 penalty were vacated, and the proceeding was dismissed.
• Key point: A superseded standard and substantial interpretive questions supported settlement approval where the Secretary and operator agreed and no prejudice appeared.

Full text (FMSHRC public release)

CCASE:
MSHA V. MORGAN
DDATE:
19900329
TTEXT:

           FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
                          WASHINGTON, D.C.
                             March 29, 1990

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

   v.           Docket No. SE 89-50-M

MORGAN CORPORATION

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners

               ORDER

BY THE COMMISSION:

In this civil penalty proceeding arising under the Federal Mine

Safety and Health Act of 1977, 30 U.S.C. $ 801 et seq. (1982)("Mine Act"
or "Act"), counsels for the Secretary of Labor and Morgan Corporation
("Morgan") have filed with the Commission a Joint Motion to Approve
Settlement. For the following reasons, the parties' settlement approval
motion is granted and this matter is dismissed.

On February 16, 1990, we granted Morgan's petition for discretionary

review of a decision of Commission Administrative Law Judge George A.
Koutras, concluding that Morgan had violated 30 C.F.R. $ 56.9005 (1988)
and assessing a civil penalty of $1,000.00. 12 FMSHRC 40 (January 1990)
(ALJ). On March 28, 1990, the Secretary and Morgan filed the Joint Motion
to Approve Settlement.

The parties note that section 56.9005 was superseded on October 24,

1988, by currently applicable 30 C.F.R. $ 56.14200. 53 Fed. Reg. 32496,
32514 (August 25, 1988). The parties emphasize that under these
circumstances, an adjudicative interpretation of section 56.9005 would
have no precedential value in the Secretary's future enforcement efforts

Page 2

or in regulating Morgan's future conduct. They further state that Morgan
has raised substantial questions concerning the proper interpretation of
section 56.9005 and whether it violated the standard. The Secretary also
seeks settlement because of her desire to use most effectively her limited
resources. Accordingly, the Secretary and Morgan request approval of
their settlement, including vacation of the citation and assessed penalty,
vacation of the Commission's direction for review, and dismissal of the
proceeding.

Oversight of proposed settlements of contested cases is an important

aspect of the Commission's adjudicative responsibilities under the Mine Act
(30 U.S.C. $ 820(k)) and is, in general, committed to the Commission's
sound discretion. See, e.g., Pontiki Coal Corp., 8 FMSHRC

Page 3

~395
668, 674-675 (May 1986). The Commission has granted motions to vacate
citations and orders and to dismiss review proceedings if "adequate
reasons" to do so are present. E.g., Southern Ohio Coal Co., 10 FMSHRC
1669, 1670 (December 1988), and authorities cited ("SOCCO").

We conclude that adequate cause exists to grant the parties' motion.

As the prosecutor charged with enforcement of the Act, the Secretary has
determined that she should seek dismissal of this proceeding, particularly
in view of the replacement of the cited standard by a new and differently
worded standard. The operator joins in the motion and has not asserted
that it would be prejudiced by dismissal. No other reason appears on this
record as to why the motion should not be granted. See, e.g., SOCCO,
supra, 10 FMSHRC at 1670.

Therefore, upon consideration of the motion, it is granted. Morgan's

petition for review is dismissed. The underlying citation and the assessed
civil penalty are vacated. Our direction for review is also vacated and
this proceeding is dismissed.

Page 4

~396
Distribution

Carl B. Carruth, Esq.
McNair Law Firm, P.A.
1301 Gervais Street
P.0. Box 11390
Columbia, South Carolina 29211

Dennis D. Clark, Esq.
Eva L. Clark, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

Administrative Law Judge George Koutras
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041