Secretary of Labor v. Aracoma Coal Company, Inc.

Plain-English summary

After the Commission affirmed Aracoma Coal's large settlement, the parties asked it to correct clerical errors in the underlying ALJ order and attached docket lists. The Commission granted reconsideration, changed the settlement count from 1,302 to 1,281 citations and orders, and corrected the total proposed assessment from $2,806,027 to $2,803,293. It also removed two dockets and 21 citations, added two dockets, and reassigned numerous citation numbers to their correct penalty dockets. The matter was remanded to the Chief Judge to make those corrections without changing the approved $1.7 million settlement.

Decision snapshot

• Governing rules: 29 C.F.R. §§ 2700.69(c) and 2700.78(a)
• Outcome: Reconsideration was granted and the matter was remanded for correction of docket, citation, and assessment figures in the settlement order.
• Key point: Once Commission review is pending, an ALJ needs Commission leave to correct even clerical errors in the reviewed settlement order.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

December 16, 2010

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

ARACOMA COAL COMPANY, INC.

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Docket No. WEVA 2006-654, et al.

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen Commissioners

ORDER ON MOTION FOR RECONSIDERATION

BY THE COMMISSION:

These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006). On December 18, 2008, the parties filed with the Chief Judge a joint
motion to approve settlement of 102 penalty dockets consisting of 1,302 separate citations and
orders, covering two mines. The joint motion enumerated the 102 penalty dockets and 1,302
citations and orders in Addendum 1 and Addendum 2 attached to the motion. Chief Judge
Robert Lesnick issued a Decision Approving Settlement/Order to Pay on December 23, 2008.
30 FMSHRC 1160 (Dec. 2008) (ALJ). On January 22, 2009, the Commission on its own
motion, directed review of the judge’s decision approving the settlement.

On January 23, 2009, the parties filed with the judge a Joint Motion to Correct Settlement
Order. The motion explained that the enumeration of the penalty dockets and of the citations and
orders in Addendum 1 and Addendum 2 of the settlement motion had contained inaccuracies.
Specifically, it had inadvertently contained 21 citations which were not part of the settlement,
and contained a number of errors in associating citations and orders with the correct penalty
docket. In their joint brief filed with the Commission, the parties noted the motion to the judge
and pointed out that pursuant to Commission Procedural Rule 69(c), 29 C.F.R. § 2700.69(c), the
judge did not have authority to correct the clerical errors without leave of the Commission. Jt.
Br. at 1 n.1.

On November 17, 2010, the Commission issued a decision affirming the judge’s approval
of the settlement. 32 FMSHRC ___, Nos. WEVA 2006-654, et. al. (Nov. 17, 2010). On
November 24, 2010, the Secretary filed a motion for reconsideration pursuant to Commission
Procedural Rule 78(a), 29 C.F.R. § 2700.78(a), on behalf of the parties, which asked the
Commission to reconsider its decision of November 17, 2010, so as to address the Joint Motion
to Correct Settlement Order previously filed with the Chief Judge.

The parties’ joint motion to correct the Chief Judge’s Decision Approving
Settlement/Order to Pay is granted, and pursuant to the January 23, 2009 letter from the Solicitor
of Labor to Judge Lesnick, the Judge’s December 23, 2008 Decision shall be corrected as
follows:

1. In the caption of the Decision, Docket Nos. WEVA 2007-444 and WEVA 2007-525
shall be deleted;

2. Docket Nos. WEVA 2006-659 and WEVA 2006-661 shall be added to the caption on
the first cover page of the Decision;

3. In the first paragraph of the Decision, the reference to “1,302 citations and orders”
shall be changed to “1,281 citations and orders;”

4. In both the first paragraph of the Decision and in footnote 1 on page 1 of the Decision,
the amount of the total assessment shall be changed from “$2,806,027 to $2,803,293;” 

5. In relation to Addenda 1 and 2 of the parties’ Motion to Approve Settlement,
incorporated by reference into the court’s December 23, 2008 Decision Approving
Settlement/Order to Pay:

(a) the 20 citations set forth within Docket No. WEVA 2007-444 on pages 9 and
10 of Addendum 1 (relating to the Aracoma Alma Mine #1) shall be deleted, and

(b) the one citation set forth within Docket No. WEVA 2007-525 on page 3 of
Addendum 2 (relating to the Hernshaw Mine) shall be deleted;

6. That the following 19 citation numbers previously associated with Docket No. WEVA
2006-660 – set forth on page 3 of Addendum 1 (relating to the Aracoma Alma Mine #1) – shall
be associated with Penalty Docket No. WEVA 2006-659:

7241394, 7241396, 7244374, 7244375, 7244376, 7244377,
7244378, 7244379, 7244380, 7244381, 7249273, 7250537,
7250538, 7252615, 7252805, 7252808, 7252810, 7252811,
7252812;

7. That the following 20 citation numbers – set forth on pages 23 and 24 of Addendum 1
(relating to the Aracoma Alma Mine #1) – shall be associated with Penalty Docket No. WEVA
2006-660:

7241398, 7241399, 7241400, 7244382, 7244383, 7244384,
7244386, 7252618, 7252619, 7252630, 7252640, 7252834,
7252838, 7252844, 7252845, 7252850, 7252855, 7252857,
7252858, 7252859;

8. That the following two citation numbers – set forth on page 24 of Addendum 1
(relating to the Aracoma Alma Mine #1) – shall be associated with Penalty Docket No. WEVA
2006-661:

7252866, 7253425;

9. That the following six citation and order numbers – set forth on pages 23 and 24 of
Addendum 1 (relating to the Aracoma Alma Mine #1) – shall be associated with Penalty Docket
No. WEVA 2008-1577:

6612795, 7182014, 7265918, 7265920, 7273497, 7280540;

10. That the following 30 citation numbers – set forth on pages 5 and 6 of Addendum 2
(relating to the Hernshaw Mine) – shall be associated with Penalty Docket No. 2008-1567:

6616651, 6616652, 6616653, 6616654, 6616655, 6616658,

6616659, 6616660, 6616663, 6616670, 6616672, 6616673,

6616679, 6616680, 6616681, 6616682, 6616717, 7279591,

7279594, 7279595, 7279596, 7279599, 7279606, 7279607,

7279608, 7279609, 7279610, 7279612, 7279615, 7279618.

Accordingly, this matter is remanded to the Chief Judge to correct the settlement order as
indicated above to conform to the corrections submitted by the parties.

Mary Lu Jordan, Chairman

Michael F. Duffy, Commissioner

Michael G. Young, Commissioner

Robert F. Cohen, Jr., Commissioner