Emery Mining Company (ALJ decision, April 22, 1987)

Plain-English summary

Emery Mining Company and Utah Power & Light Company's mining division resolved 16 dockets involving 14 citations and orders. The settlement reduced the total penalties from $4,221 to $3,024, vacated two withdrawal orders, modified five withdrawal orders from section 104(d)(1) to section 104(a) citations, and approved withdrawal of nine related contest proceedings. Judge Michael A. Lasher, Jr. found that the agreement served the purposes of the Mine Safety Act and approved it. The order required payment of $3,024 and dismissed the nine withdrawn contest dockets.

Decision snapshot

• Cited standard(s): The decision does not identify individual standards.
• Outcome: The settlement was approved, two orders were vacated, five orders were modified to section 104(a) citations, and nine contest proceedings were dismissed.
• Key point: A settlement may resolve multiple penalty and contest proceedings by reducing penalties, changing enforcement classifications, vacating specified orders, and withdrawing related contests.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. EMERY MINING
DDATE:
19870422
TTEXT:

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~820

Federal Mine Safety and Health Review Commission Office of Administrative Law Judges

SECRETARY OF LABOR,
Docket No. WEST 86-217
MINE SAFETY AND HEALTH
A.C. No. 42-00121-03604
ADMINISTRATION (MSHA),
PETITIONER/RESPONDENT
Docket No. WEST 86-197-R
Order 2835167; 5/28/86

Docket No. WEST 86-218
A.C. No. 42-00121-03605

Docket No. WEST 86-239
A.C. No. 42-00121-03609

Docket No. WEST 86-123-R
Order 2835108; 4/8/86

Docket No. WEST 86-136-R
Order 2835417; 4/2/86

v. Docket No. WEST 86-152-R
Order 2835133; 4/8/86

Docket No. WEST 86-169-R
Order 2835132; 4/9/86

Docket No. WEST 86-240
A.C. No. 42-00121-03610

Docket No. WEST 86-159-R
Order 2834579; 4/16/86

Docket No. WEST 86-241
A.C. No. 42-00121-03611

Docket No. WEST 86-160-R
Order 2834610; 4/16/86

Deer Creek Mine

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Docket No. WEST 86-236
EMERY MINING COMPANY,
A.C. No. 42-00988-03546
RESPONDENT/CONTESTANT
UTAH POWER AND LIGHT COMPANY,
Docket No. WEST 86-89-R
MINING DIVISION,
Citation 2834441; 2/5/86
RESPONDENT/CONTESTANT
Docket No. WEST 86-237
CIVIL PENALTY PROCEEDINGS
A.C. No. 42-00988-03547
CONTEST PROCEEDINGS
Docket No. WEST 86-87-R
Citation 2834444; 2/5/86

Deseret Mine

DECISION APPROVING SETTLEMENT

Before: Judge Lasher

The parties have reached an overall resolution of the above 16 dockets which involve a total of 14 Citations and Orders. The settlement calls for the vacation of two withdrawal orders in Docket WEST 86Ä240, the payment of total penalties in the sum of $3,024.00 (MSHA's initial administrative assessments totalled $4,221.00), the modification of five withdrawal orders from issuance under Section 104(d)(1) to issuance under Section 104(a), and the withdrawal by Respondent of all nine of its notices of contest in the nine contest dockets related to the pertinent penalty proceedings.

A summary of the settlement reached appears below:

Initial
Agreed
Docket No. Citation/Order No. Assessment Settlement

WEST 86Ä217 2835167 $500 $300
modify to 104(a)
WEST 86Ä218 2834501 192 50 WEST 86Ä236 2834441 600 600
2834499 400 200
modify to 104(a)
WEST 86Ä237 2834444 79 79 WEST 86Ä239 2835417 700 700
2835108 400 400
2835132 150 75
modify to 104(a)
2835133 300 20
modify to 104(a)
WEST 86Ä240 2835140 Vacated (Partial settlement)
2834563
Vacated
2834575
Pending review by Commission
in Docket WEST 86Ä126-R
2834579 400 400
WEST 86Ä241 2834610 500 200
modify to 104(a)

$4,221
$3,024

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The motion for approval of the settlement points out that the settlement was achieved after counsel for both parties had fully reviewed the merits of the other party's anticipated evidence and fully and frankly analyzed the potential outcome of the litigation issues had the matter proceeded to hearing. It also appears that Respondent/Contestant a "moderate to large" mine operator, has an average history of compliance and proceeded in good faith to abate the subject violations upon notification thereof.

Upon evaluation of this settlement, information contained in the motion for approval and the various case files, it is concluded that the amicable agreement reached effectuates the purposes of the Mine Safety Act and should be approved.

ORDER

Respondent/Contestant, if it has not previously done so, shall pay the Secretary of Labor the sum of $3,024.00, as and for the civil penalties hereinabove specified, on or before 30 days from the date of this decision.

In Docket No. WEST 86Ä240, Orders Nos. 2835140 and 2834563, are vacated. (FOOTNOTE 1)

Orders Nos. 2834610, 2835167, 2835132, 2834499, and 2835133 are modified to change their issuance from under Section 104(d)(1) of the Act to issuance as Citations under Section 104(a) of the Act and are otherwise affirmed in all respects including their designation as significant and substantial violations.

Contest dockets Nos. WEST 86Ä197-R, 89-R, 87-R, 136-R, 123ÄR, 169-R, 152-R, 159-R, and 160-R, relating to the penalty dockets which are the subject hereof, have been withdrawn by Respondent/Contestant, and such withdrawals are approved as part of the settlement and these nine proceedings are dismissed.

Michael A. Lasher, Jr.
Administrative Law Judge
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
~FOOTNOTE_ONE
1 A separate "Decision Approving Partial Settlement" has been issued with respect to Docket WEST 86Ä240 since one of the four enforcement papers therein (Citation No. 2834575) remains viable and is presently before the Commission on review. The related contest docket, WEST 86Ä159-R, has, however, been withdrawn by Respondent/Contestant and such withdrawal is being approved herein.