Conn Pest Control Incorporated (ALJ decision, February 26, 1993)

Plain-English summary

Conn Pest Control was cited because a miner had not received the required annual refresher course. The Secretary explained that the operator's negligence was lower than initially believed because it was uncertain whether the operator knew the miner had not been trained. Judge Paul Merlin approved the settlement and reduced the penalty from $300 to $150. The operator was ordered to pay the settlement within 30 days.

Decision snapshot

• Cited standard: 30 C.F.R. § 48.28(a).
• Outcome: The proposed settlement was approved and a $150 penalty was ordered.
• Key point: A contested civil penalty settlement requires Commission approval under section 110(k) of the Mine Act.

Full text (FMSHRC public release)

February 26, 1993

SECRETARY OF LABOR,
: CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 92-563 Petitioner : A. C. No. 02-01195-03502 KCK :
v. : Kayenta Mine
CONN PEST CONTROL
:
INCORPORATED,
:
Respondent :

DECISION APPROVING SETTLEMENT
ORDER TO PAY

Before: Judge Merlin

The Solicitor has filed a letter advising that the operator has paid $150 in settlement of the penalty originally assessed at $300. The Solicitor asks that his letter be treated as a motion to dismiss.

The subject citation indicates that it was issued for a violation of 30 C.F.R. 48.28(A) because a miner had not re- ceived the required annual refresher course. The Solicitor represents that negligence is less than first thought because there is some question whether or not the operator was in fact aware that the miner had not been trained.

The Solicitor's letter is treated as a motion for settlement and I accept the advice set forth therein. Based thereon I conclude that $150 is an appropriate penalty under the six criteria set forth in section 110(i) of the Act. Accordingly a settlement in that amount is approved.

The Solicitor is reminded that under section 110(k) of the Act no proposed penalty that has been contested before the Commission can be compromised, mitigated or settled without the approval of the Commission. All such matters are before the Commission de novo. Sellersburg Stone Company v. Federal Mine Safety and Health Review Commission, 736 F.2d 1147 (7th Cir. 1984). Therefore, in all cases a motion to approve settlement should be made rather than a request for dismissal.

In light of the foregoing, it is ORDERED that the recommend- ed settlement be APPROVED and that the operator PAY $150 within 30 days of the date of the order.

Paul Merlin
Chief Administrative Law Judge

Distribution:

Marshall P. Salzman, Esq., Office of the Solicitor, U. S. Depart- ment of Labor, 71 Stevenson Street, Suite 1110, San Francisco, CA 94105 (Certified Mail)

Mr. Les Shelton, Conn Pest Control, P. O. Box 1146, Flagstaff, AZ 86002 (Certified Mail)

/gl