Secretary of Labor v. Red Ash Smokeless Coal Corp. (ALJ decision, November 19, 1980)

Plain-English summary

Red Ash Smokeless Coal faced an initial $2,500 assessment for two serious roof control violations at its No. 1 Mine. The parties proposed settling for $2,000. Judge Joseph B. Kennedy found that amount consistent with the Mine Act's purposes for the corporate operator and approved the settlement. He separately criticized MSHA for declining to seek penalties from individuals he believed were responsible for the violations. The operator was ordered to pay $2,000 by December 1, 1980, after which the case would be dismissed.

Decision snapshot

• Cited authority: Section 2(g)(2) of the Mine Act, 30 U.S.C. § 801(g)(2); the decision does not identify the specific roof control standards.
• Outcome: Settlement approved for $2,000, reduced from the initial $2,500 assessment; dismissal subject to payment.
• Key point: The judge approved the operator's settlement while recording his disagreement with MSHA's enforcement choices concerning individuals.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. RED ASH SMOKELESS COAL
DDATE:
19801119
TTEXT:
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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. VA 80-137
PETITIONER
A.O. No. 44-05144-03016V

v. Mine No. 1

RED ASH SMOKELESS COAL CORP.,
RESPONDENT

DECISION AND ORDER

These two serious roof control violations were initially assessed at $2,500. The parties propose a settlement in the amount of $2,000. Based on an independent evaluation and de novo review of the circumstances, I find the amount of the settlement proposed is, insofar as the corporate operator is concerned, in accord with the purposes and policy of the Act. I wish to record once more my vigorous disagreement with the abuse of prosecutorial discretion involved in MSHA's failure and refusal to initiate penalty proceedings against the individuals responsible for these violations. Section 2(g) of the Mine Safety Law, 30 U.S.C. 801(g)(2), specifically provides that it is the purpose of the law "to require that ... every miner" employed in a mine "comply with [the mandatory safety] standards."

It is my firm belief that the grant of immunity conferred on the workforce by MSHA is a violation of this provision and encourages disrespect for the law. I note that the carnage in the mines has sharply increased and that in one recent thirty day period 22 miners were killed, or almost one for every working day. Mr. Lagather is quoted as saying he doesn't "have any concrete reason to point to". I suggest he does, and that lax enforcement against miners who commit safety violations is a very "concrete" reason.

If I thought it would change the administration's policy I would approve this settlement but suspend payment of the penalty unless and until appropriate action is taken against the individuals who bear culpable responsibility for the violations in question. I recognize, however, that we are in a period of transition and that until that is resolved little change in this misguided policy can be hoped for.
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Accordingly, it is ORDERED that the motion to approve settlement be, and hereby is, GRANTED. It is FURTHER ORDERED that the operator pay the penalty agreed upon, $2,000, on or before Monday, December 1, 1980, and that subject to payment the captioned matter be DISMISSED.

Joseph B. Kennedy
Administrative Law Judge