Westmoreland Coal Company

Plain-English summary

Westmoreland Coal paid an $85 civil penalty after an ALJ approved a settlement and dismissed the case. The company later said the payment was a mistake and asked that the dismissal be reopened so it could contest the violation. The Commission treated the company's letters as a petition for discretionary review, vacated the ALJ's dismissal, and remanded for further proceedings. The Commission stated that more information was needed to determine whether the payment was a genuine mistake.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 75.203; 29 C.F.R. §§ 2700.65(c) and 2700.70(a); 30 U.S.C. §§ 814(a), 816, and 823(d)(2)(A)(i).
• Outcome: The ALJ's dismissal was vacated and the matter was remanded for proceedings consistent with the Commission's order.
• Key point: Payment of a civil penalty generally ends an operator's right to contest the violation, but a genuine mistake may preserve that right if proven.

Full text (FMSHRC public release)

           FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
                          WASHINGTON, D.C.
                             March 1, 1989

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

    v.          Docket No. VA 89-17

WESTMORELAND COAL COMPANY

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), Commission Administrative Law Judge William Fauver
issued a Decision Approving Settlement on February 3, 1989. After
noting that Westmoreland Coal Company ("Westmoreland") had paid the
civil penalty proposed for the violation in issue, the judge granted
a dismissal request from the Secretary of Labor and dismissed the
proceeding. Subsequently, the judge received from counsel for
Westmoreland letters stating that Westmoreland had mistakenly paid
the civil penalty and requesting, in effect, that the judge's decision
be vacated and the matter be reopened for further proceedings. We
deem these letters to constitute a petition for discretionary review
and, for the following reasons, we vacate the judge's decision and
remand for further proceedings.

 On November 9, 1988, an inspector of the Department of Labor's

Mine Safety and Health Administration ("MSHA") issued to Westmoreland,
at its Prescott No. 2 underground coal mine, a citation pursuant to
section 104(a) of the Act, 30 U.S.C. § 814(a), alleging a violation of

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mandatory safety standard 30 C.F.R. § 75.203. 1/ On December 16, 1988,

1/ Section 75.203(a), a mandatory safety standard for underground
coal mines, provides:

        The method of mining shall not expose any
person to hazards caused by excessive widths of rooms,

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the Secretary filed with the Commission a Petition for Assessment
of Civil Penalty proposing an §85 penalty for the alleged violation.
Westmoreland subsequently filed an Answer contesting the penalty
and underlying violation. The matter was assigned to Judge Fauver,
who issued a Prehearing Order on January 26, 1989, directing the
parties to confer by February 21, 1989, for the purposes of
discussing any possible settlement or stipulations.

By letter to Chief Administrative Law Judge Paul Merlin, dated
January 26, 1989, and received by the Commission on January 30, 1989,
counsel for the Secretary stated:

 The operator in this case has paid the full amount
 of the penalty that was assessed, §85. As far as we
 are concerned, the case may now be dismissed.

On February 3, 1989 Judge Fauver issued his decision dismissing the
case. He stated: Petitioner has moved to dismiss the case based
upon full payment of the proposed civil penalty. I have considered
the representations and documentation submitted and I conclude that
the proffered settlement is consistent with the criteria in § 110(i)
of the Act."

By letters to Judge Fauver dated February 1 and February 7,

1989, and received by the Commission on February 3 and February 9,
respectively, counsel for Westmoreland stated that the civil penalty
in question had been paid in error and requested that the matter not
be dismissed and remain on the Commission's docket.

The judge's jurisdiction in this matter terminated when

his decision issued on February 3, 1989. 29 C.F.R. § 2700.65(c).
Under the Mine Act and the Commission's procedural rules, once a
judge's decision has issued, relief from the decision may be sought
by filing with the Commission a petition for discretionary review
within 30 days of the decision. 30 U.S.C. § 823(d)(2)(A)(i),
29 C.F.R. 2700.70(a). Here, Westmoreland's letters are a request
for relief from the judge's decision, and we will treat them as a
petition for discretionary review.

A civil penalty under the Mine Act is predicated upon the

existence of a violation. An operator cannot deny the existence
of a violation for purposes connected with the Mine Act and at the
same time pay a civil penalty. Therefore, the Commission has held
that an operator's payment of a civil penalty proposed for a violation
extinguishes the operator's right to contest the fact of violation.

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Old Ben Coal Co., 7 FMSHRC 205, 209 (February 1985). The Commission
has also expressly noted, however, that where a civil penalty has been
paid by genuine mistake, the operator's right to contest the violation
may not be lost. Old Ben Coal Co., 7 FMSHRC at 210 n.6.

 crosscuts and entries, or faulty pillar recovery
 methods. Pillar dimensions shall be compatible
 with effective control of the roof, face and ribs
 and coal or rock bursts.

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~277
The record does not contain sufficient information to permit
us to determine whether Westmoreland's penalty payment was a
"genuine mistake." Further proceedings may be necessary to address
Westmoreland's assertions and for the judge to determine what relief,
if any, is appropriate.

Accordingly, the judge's decision is vacated, and the matter is
remanded for proceedings consistent with this order.

                Ford B. Ford, Chairman

                Richard V. Backley, Commissioner

                Joyce A. Doyle, Commissioner

                James A Lastowka, Commissioner

                Clair Nelson, Commissioner