Ezel / Agency Decisions / west-88-203-m-alj
FMSHRC ALJ decision Docket WEST 88-203-M, WEST 88-204-M, WEST 88-205-M, WEST 88-67-RM, WEST 88-68-RM, WEST 88-69-RM, WEST 88-70-RM, WEST 88-71-RM, WEST 88-72-RM, WEST 88-73-RM, WEST 88-74-RM, WEST 88-75-RM, WEST 88-76-RM, WEST 88-78-RM Decided July 13, 1989 Settled Judge Michael A. Lasher, Jr.

Big Horn Calcium Company v. Secretary of Labor

Big Horn Calcium Company v. Secretary of Labor (FMSHRC WEST 88-203-M and related dockets): Settlement approved with $2,776 in penalties

Apply this to your situation

This order from 1989 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.

Currency note: this decision dates from 1989
The MSHA standards may have been amended, penalty amounts have been adjusted, and later Commission or court decisions may have changed the analysis since then. Treat this page as historical context, not current compliance advice. Verify the current standard before relying on any specific rule, threshold, or penalty mentioned here.
Final ALJ decision, not Commission precedent
This decision approved a settlement covering 11 contest proceedings and three related civil penalty proceedings. It became final under the 40-day rule in 30 U.S.C. § 823(d)(1), and the parties were ordered to follow the settlement terms. It binds the parties but is not Commission precedent. The full text below is from the official FMSHRC release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official FMSHRC release. The full text is the agency's own release.
Read the official release (fmshrc.gov)

Plain-English summary

Big Horn Calcium Company resolved a group of contest and civil penalty proceedings involving its Warren Quarry and Mill. Judge Michael A. Lasher, Jr. approved the settlement, which reduced the negligence designations for one citation and one order, vacated another citation for insufficient evidence, and dismissed the 11 contest proceedings. The company agreed to pay the assessed penalties, totaling $2,776. The settlement also specified that the company did not admit a Mine Act violation for unrelated judicial or administrative proceedings.

Decision snapshot

  • Governing provisions: The settlement order does not identify a specific regulatory standard.
  • Outcome: The settlement was approved, one citation was vacated, one citation and one order were modified, 11 contests were dismissed, and $2,776 in penalties was assessed.
  • Key point: An ALJ may approve a negotiated resolution that changes enforcement classifications, vacates an unsupported citation, and resolves related contest proceedings.

Full text (FMSHRC public release)

CCASE:
BIG HORN CALCIUM V. SOL (MSHA)
DDATE:
19890713
TTEXT:

Page 2

~1280
Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

BIG HORN CALCIUM COMPANY,
CONTESTANT

         v.

SECRETARY OF LABOR, CONTEST PROCEEDINGS
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEST 88-67-RM
RESPONDENT Citation No. 3065941; 12/5/87

                                   Docket No. WEST 88-68-RM
                                   Citation No. 3065942; 12/5/87

                                   Docket No. WEST 88-69-RM
                                   Citation No. 2648962; 12/9/87

                                   Docket No. WEST 88-70-RM
                                   Citation No. 2648963; 12/9/87

                                   Docket No. WEST 88-71-RM
                                   Citation No. 2648964; 12/10/87

                                   Docket No. WEST 88-72-RM
                                   Citation No. 2648965; 12/10/87

                                   Docket No. WEST 88-73-RM
                                   Citation No. 2648966; 12/10/87

                                   Docket No. WEST 88-74-RM
                                   Citation No. 2648967; 12/10/87

                                   Docket No. WEST 88-75-RM
                                   Citation No. 2648968; 12/10/87

                                   Docket No. WEST 88-76-RM
                                   Citation No. 2648970; 12/10/87

                                   Docket No. WEST 88-78-RM
                                   Citation No. 2648971; 12/10/87

                                   Warren Quarry & Mill
                                   Mine ID No. 24-00006

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEST 88-203-M
PETITIONER A.C. No. 24-00006-05513

    v.                             Docket No. WEST 88-204-M
                                   A.C. No. 24-00006-05514

BIG HORN CALCIUM COMPANY,
RESPONDENT Docket No. WEST 88-205-M
A.C. No. 24-00006-05515

Page 3

(And Related Contest Dockets)

Warren Quarry & Mill

Page 4

~1281
DECISION APPROVING SETTLEMENT

Before: Judge Lasher

 Upon motion for approval of a proposed settlement of the 22

alleged violations in these 3 dockets and the same appearing
proper and in the full amount of the initial assessments for 21
of the 22 alleged violations, the settlement is approved.

 As reflected in the caption, this matter resolves a total of

11 contest dockets and 3 related penalty dockets. The three
related penalty dockets involve a total of 22 enforcement
documents (Citations and Orders). The settlement disposes
completely of these 22 proposed penalty assessment as well as an
additional Citation which is the subject of Contest Docket No.
WEST 88-75-RM but which was not, apparently due to administrative
oversight, made the subject of a proposal for penalty, all of
which is reflected below. Big Horn Calcium Company, upon approval
of this settlement, agrees to withdraw its contest proceedings
herein.

    1. Docket No. WEST 88-203-M

                              Proposed        Related Contest
       Citation No.           Penalty         Proceeding

         2645747             $ 20.00
         2645748               20.00
         2645749               20.00
         2645750               68.00
         2645753               68.00
         2645754               20.00
         2645755               20.00
         2645756               20.00
         2645757               20.00
         2645763               20.00            (88-70-RM)
         2645764               20.00            (88-71-RM)
         2645765               20.00            (88-72-RM)
         2645766               20.00            (88-73-RM)
         2645767               20.00            (88-74-RM)

 Big Horn Calcium Company agrees to pay the above penalties

and such are here assessed.

    2. Docket No. WEST 88-204-M

                           Proposed        Related Contest
    Citation No.           Penalty         Proceeding

      3065941              $1,000.00        (88-67-RM)

    Order No.

      3065942              $1,000.00        (88-68-RM)

    Citation No.

Page 5

2648962 300.00 (88-69-RM)

Page 6

~1282
(a) Pursuant to the agreement reached, Citation No. 3065941 is
modified from Section 104(d)(1) to Section 104(a) since pretrial
preparation disclosed that the violation was not the result of an
unwarrantable failure on the part of the mine operator. Likewise,
the negligence showing on the Citation is reduced from "reckless
disregard" to "high". The proposed penalty of $1,000.00 and the
designation of the violation as significant and substantial shall
remain unchanged.

 (b) Order No. 3065942 is also modified from Section

104(d)(1) to Section 104(a). Again, pretrial preparation
disclosed that the violation was not the result of an
unwarrantable failure on the part of the operator and,
accordingly, the negligence shall also, as agreed, be reduced
from "reckless disregard" to "high". The proposed penalty of
$1,000.00 and the designation of the violation as significant and
substantial shall remain unchanged.

 (c) Citation No. 2648962 and its $300 proposed penalty shall

remain unchanged.

 (d) Big Horn Calcium Company agrees to withdraw its contest

to the citations and order as amended herein and to pay the
penalties above reflected. Such are here assessed.

    3. Docket No. WEST 88-205-M

                        Proposed          Related Contest
    Citation No.        Penalty           Proceeding

      2645752           $20.00
      2645758            20.00
      2645759            20.00
      2648970 (Vacated) (20.00) (Withdrawn)   (88-76-RM)
      2648971            20.00                (88-78-RM)

 (a) The Secretary having moved to vacate Citation No.

2648970 and to withdraw her proposed penalty therefor on the
basis of insufficient evidence, such motion is approved and
Citation No. 2648970 is VACATED.

 (b) Big Horn Calcium Company agrees to withdraw its contest

to the other four (4) citations in Docket No. WEST 88-205-M and
to pay the above penalties which are here assessed.

    4. Docket No. WEST 88-75-RM

 A civil penalty proceeding was never filed by MSHA with

respect to this Citation (No. 2648968). While a civil penalty has
not been proposed, the parties agree that a $20.00 penalty is

Page 7

~1283
appropriate. This agreement is approved as part of this overall
settlement. Big Horn Calcium Company agrees to withdraw its
contest to Citation No. 2648968 and to pay the agreed penalty
which is here assessed.

 In consenting to this settlement agreement, the parties have

agreed (1) that nothing therein shall be deemed an admission by
Big Horn Calcium Company of a violation of the Federal Mine
Safety and Health Act, or regulation or standard thereof, in any
judicial or administration forum other than an action brought by
the United States Government under the Federal Mine Safety and
Health Act, and (2) that by entering this settlement agreement,
Big Horn Calcium Company does not admit to a violation of the
Federal Mine Safety and Health Act, or regulation or standard
thereof, for the purpose of any judicial or administrative
proceeding which directly or indirectly concerns the civil or
criminal liability of any or all directors, officers and agents
of Big Horn Calcium Company regarding the subject matter,
allegations and issues related to Citation No. 3065941 and Order
No. 3069542 [Docket No. WEST 88-204-M].

 In the premises, the amicable resolution reached by the

parties appears appropriate and is approved with the parties to
bear their own fees and expenses.

                             ORDER

 1. Citation No. 2648970 is VACATED.

 2. Citation No. 3065941 and Order No. 3065942 are MODIFIED

as specified hereinabove.

 3. The 11 Contest proceedings listed in the Caption are,

based on this approval of settlement, DISMISSED.

 4. Big Horn Calcium Company, if it has not previously done

so, is ordered to pay to the Secretary of Labor within 30 days
from the date hereof the sum of $2,776.00 as and for the civil
penalties hereinabove assessed.

                           Michael A. Lasher, Jr.
                           Administrative Law Judge

Get today's answer for your situation

You just read what one judge decided for one employer in 1989, and it binds only those parties. Ezel checks the current MSHA standards and Commission precedent and answers your specific situation, with citations.

Opens in Ezel Pro. Every answer cites the authority it relies on.