Cedar Creek Quarries, Inc.

Plain-English summary

Cedar Creek Quarries was charged with refusing to cooperate with an MSHA investigation and proposed a $2,000 penalty. The parties submitted a settlement that would withdraw the penalty. Judge T. Todd Hodgdon rejected the agreement because the motion did not provide enough facts to support eliminating the penalty, and the Mine Act requires a penalty when a violation occurred. The parties were given 15 days to submit a compliant agreement or the case would be set for hearing.

Decision snapshot

• Governing provisions: 30 U.S.C. § 813(a); 30 U.S.C. § 820(a); 30 U.S.C. § 820(i); 29 C.F.R. § 2700.31(b)(3)
• Outcome: The settlement motion was denied, with 15 days allowed for a compliant agreement or the case proceeding toward hearing.
• Key point: A settlement motion must provide facts supporting the agreed penalty, and a proposed settlement cannot simply eliminate a penalty when the record indicates a violation.

Full text (FMSHRC public release)

.
CEDAR CREEK QUARRIES, INC.
May 9, 1995
WEST 94-637-M

       FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

             OFFICE OF ADMINISTRATIVE LAW JUDGES
                    2 SKYLINE, 10th FLOOR
                      5203 LEESBURG PIKE
                FALLS CHURCH, VIRGINIA  22041


                         May 9, 1995

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 94-637-M
Petitioner : A. C. No. 35-03123-05514
:
v. : Cedar Creek Quarries
:
CEDAR CREEK QUARRIES, INC., :
Respondent :

           ORDER DISAPPROVING SETTLEMENT AGREEMENT

Before: Judge Hodgdon

 This case is before me on a petition for assessment of civil

penalty under Section 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 815(d). The parties have
filed a motion to approve a settlement agreement.[1] The
agreement provides that the proposed penalty of $2,000.00 will
be "withdrawn."

 Citation No. 3923238 alleges a violation of Section 103(a)

of the Act, 30 U.S.C. § 813(a), because, according to the
motion, the Respondent's president:

 refused to be interviewed by an MSHA special investigator
 concerning a § 110(c) violation, [30 U.S.C. § 820(c)],
 refused to allow his foreman to be interviewed, and refused
 to provide the names of employees who were present at
 the quarry on the day that an earlier citation - which
 was the subject of the investigation - was issued.

 Apparently as mitigation, the motion relates that after

contacting his attorney, arrangements were made for the
investigator to return to the mine 13 days later, at which time
the president and his employees were interviewed. The motion
further recounts that the company has cooperated during
subsequent inspections, that the president understands that MSHA
is required to inspect all surface mines twice a year and that
MSHA inspectors and investigators have a right to enter the mine
and mine offices without a warrant for the purpose of conducting
inspections and investigations.

 This motion must be disapproved for two reasons.  First,

Commission Rule 31(b)(3), 29 C.F.R. § 2700.31(b)(3), requires
that a motion to approve a settlement include "[f]acts in support
of the penalty agreed to by the parties." While the facts
provided in this motion might provide support for reducing the
proposed penalty, they certainly are insufficient to support
doing away with it entirely.

 Secondly, and more importantly, Section 110(a) of the Act,

30 U.S.C. § 820(a), provides that "[t]he operator of a coal or
other mine in which a violation occurs of a mandatory health or
safety standard or who violates any other provision of this Act,
shall be assessed a civil penalty by the Secretary . . . ."
Consequently, if there is a violation, there must be a civil
penalty. Island Creek Coal Co., 2 FMSHRC 279, 280 (February
1980). It certainly appears that there was a violation in this
case. See U.S. Steel Corp., 6 FMSHRC 1423, 1433 (June 1984).
Therefore, there has to be some civil penalty, it cannot be
"withdrawn."

 The Mine Act was passed with the intention that the

Commission "assure that the public interest is adequately
protected before approval of any reduction in penalties."
S. Rep. No. 95-181, 95th Cong., 1st Sess. 45 (1977), reprinted in
Legislative History of the Federal Mine Safety and Health Act of
1977, at 633 (1978). In this connection, it is the judge's
independent responsibility to determine the appropriate amount of
penalty, in accordance with the six criteria set out in Section
110(i) of the Act, 30 U.S.C. § 820(i). Sellersburg Stone Company
v. Federal Mine Safety and Health Review Commission, 736 F.2d
1147, 1151 (7th Cir. 1984).

 Based on the statements provided, I have no way of making

such a determination in this case. Consequently, having
considered the representations and documentation submitted, I am
unable to approve the proffered settlement.

                            ORDER

 Accordingly, it is ORDERED that the motion for approval of

settlement is DENIED. The parties have 15 days from the date of
this order to submit an agreement that conforms to the Act and
the Regulations, either by providing for a suitable civil penalty
or, if the Secretary deems it appropriate, vacating the citation.
Failure to resubmit a new agreement within the time provided will
result in the case being rescheduled for hearing.

                             T. Todd Hodgdon
                             Administrative Law Judge
                             (703) 756-4570

Distribution:

Matthew L. Vadnal, Esq., Office of the Solicitor, U.S.
Department of Labor, 1111 Third Avenue, Suite 945, Seattle,
WA 98101 (Certified Mail)

Kurt Carstens, Esq., Litchfield & Carstens, 407 North
Coast Highway, P.O. Box 1730, Newport, OR 97365
(Certified Mail)

/lbk

FOOTNOTES

 [1]:  This case was scheduled for hearing on April 27, 1995,

but the hearing was canceled when the parties advised that the
case had been settled.