Madison Branch Management

Plain-English summary

Madison Branch Management and Protective Security Services faced enforcement proceedings after a security guard died from carbon monoxide exposure in a vehicle with a damaged exhaust system at Madison's Job No. 3 mine. The parties proposed settlements, but the administrative law judge denied approval and sought additional evidence about vehicle inspections, training, and carbon monoxide hazards. The Commission held that the judge applied an overly broad abatement analysis to the narrowly drawn citations, vacated the orders denying the settlement motions, and remanded for the judge to reconsider the settlements under the statutory penalty criteria. The Commission did not finally approve or reject the settlements in this decision.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 77.404(a); 30 C.F.R. § 48.31(a)
• Outcome: The ALJ’s orders denying summary decision and settlement approval were vacated, and the settlement issue was remanded.
• Key point: Settlement review must address the charged violations and statutory penalty criteria, while considering the complete settlement package and the public interest.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

                                    June 12, 1995

MADISON BRANCH MANAGEMENT : Contest Proceedings
:
v. : Docket Nos. WEVA 93-218-R
: WEVA 93-219-R
SECRETARY OF LABOR, : WEVA 93-220-R
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
:
SECRETARY OF LABOR, : Civil Penalty Proceedings
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) : Docket Nos. WEVA 93-373
: WEVA 93-412
v. :
:
MADISON BRANCH MANAGEMENT :
:
:
:
SECRETARY OF LABOR, : Civil Penalty Proceeding
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) : Docket No. WEVA 93-415
:
v. :
:
PROTECTIVE SECURITY SERVICES AND :
INVESTIGATIONS, INC. :

BEFORE: Jordan, Chairman; Doyle, Holen and Marks, Commissioners

                                            DECISION

BY: Jordan, Chairman and Marks, Commissioner

    These consolidated contest and civil penalty proceedings arise under the Federal Mine

Safety and Health Act of 1977, 30 U.S.C. ' 801 et seq. (1988) ("Mine Act" or "Act"). On
September 16, 1994, Madison Branch Management ("Madison") petitioned the Commission for

Page 2

interlocutory review of interlocutory orders issued by Administrative Law Judge Jerold Feldman.
See Commission Procedural Rule 76(a)(1)(ii), 29 C.F.R. § 2700.76(a)(1)(ii). Madison also
requested suspension of the hearing scheduled before the judge. The Secretary of Labor
("Secretary") filed a statement in support of Madison's petition. By order dated September 20,
1994, the Commission granted the petition, suspended briefing, and stayed the hearing.

    In his orders, Judge Feldman, in effect, denied motions by the Secretary to dispose of

these cases pursuant to a settlement agreement reached by the parties. The judge based his
determinations on his concern that additional abatement measures beyond those required by the
Secretary might be necessary to remove the safety risk posed by the violations. We view the
instant petition as one seeking review of these interlocutory orders taken as a whole. For the
reasons that follow, the Commission vacates the orders and remands the issue of whether the
settlement agreement should be approved.1
1
A ll Com m issioners vote to overtu rn the ju d g e's determ ina tion tha t the settlem ent
m otion shou ld be denied beca u se, in his view , there exists a g enu ine fa ctu a l issu e, i.e. the
effica cy of the vehicle inspection prog ra m , concerning w hether respondents a ba ted the viola -
tions. Order da ted A u g u st 29, 1994, a t 2. The Com m issioners a g ree tha t this issu e is not
releva nt to whether the respondents dem onstra ted g ood fa ith in a ttem pting to a chieve ra pid
com plia nce, the sixth pena lty criterion. Cha irm a n Jorda n a nd Com m issioner M a rk s vote to
va ca te the interlocu tory orders, rem a nd the qu estion of a pproving the settlem ent, a nd perm it the
ju d g e to consider non- m oneta ry fa ctors in ru ling on the m otion to a pprove the settlem ent.
Com m issioners D oyle a nd Holen disa g ree tha t non- m oneta ry fa ctors a re a ppropria te consider-
a tions a nd conclu de tha t a rem a nd is u nnecessa ry. They w ou ld a pprove the proposed
settlem ent. In W yom ing Fu el Co., 16 FM SHRC 1618, 1619- 2 0 n. 3 ( A u g u st 1994), the
Com m ission determ ined tha t, in the event of a tie vote, the vote of Com m issioners closest in
effect to the ju d g e'
s decision is the Com m ission' s disposition. The vote of Cha irm a n Jorda n a nd
Com m issioner M a rk s to rem a nd this m a tter to the ju d g e is closest in effect to the ju d g e'
s
decision a nd is therefore the Com m ission' s disposition.

                                                2

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                                                   I.

                                        Factual Background

    These consolidated proceedings arose from two citations and an imminent danger order

issued by the Department of Labor's Mine Safety and Health Administration ("MSHA") to
Madison and from a citation and an imminent danger order issued by MSHA to Protective
Security Service and Investigations, Inc. ("PSSI"), an independent contractor that provided
security services at Madison's Job No. 3 mine. MSHA issued the citations following the death on
March 1, 1993, of Allen Garrett, a security guard employed by PSSI, who was asphyxiated in his
vehicle on mine property. An MSHA investigation determined that the vehicle's damaged exhaust
system, which permitted excessive amounts of carbon monoxide to enter the cab, was the
proximate cause of the fatality.

    Citation Nos. 3976644 and 3976646 issued to Madison and PSSI, respectively, pursuant

to section 104(a) of the Mine Act, 30 U.S.C. § 814(a), alleged that PSSI operated the vehicle in
an unsafe condition on mine property in violation of 30 C.F.R. § 77.404(a).2 The inspector
designated the violation significant and substantial.3 The Secretary proposed civil penalties of
$2,000 against Madison and $3,000 against PSSI. The inspector further determined that the
vehicle posed an imminent danger to employees working at Job No. 3 and, accordingly, pursuant
to section 107(a) of the Act, 30 U.S.C. § 817(a), issued Order Nos. 3976643 and 3976645
requiring its removal from mine property.

    The citations are basically identical and state:

             The Ford Bronco II Serial # IFMBU14T7GUA67264 being oper-
             ated on the surface mine property was not being maintained in a
             safe operating condition in that the exhaust system was damaged
             and leaking carbon monoxide at (3) locations.


    2
        Section 77.404( a ) provides:

                       M obile a nd sta tiona ry equ ipm ent a nd m a chinery sha ll be
             m a inta ined in sa fe opera ting condition a nd m a chinery . . . in
             u nsa fe condition sha ll be rem oved from service im m edia tely.
    3
         The sig nifica nt a nd su bsta ntia l term inolog y is ta k en from section 104( d)( 1) of the

A ct, 30 U.S.C. § 814(d)(1), which disting u ishes a s m ore seriou s in na tu re a ny viola tion tha t
"cou ld sig nifica ntly a nd su bsta ntia lly contribu te to the ca u se a nd effect of a . . . m ine sa fety or
hea lth ha za rd . . . ."

                                                   3

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            This was a contributing factor which resulted in a fatal injury.

            This citation is issued in conjunction with 107A Order No. 3976643
            therefore no abatement time is set.

   In Citation No. 3976647 issued to Madison, MSHA also alleged a violation of 30 C.F.R.

' 48.31(a)4 for failure to provide hazard training to Garrett before he began working at the mine.
The Secretary proposed a civil penalty of $88 for this violation.

                                                II.

                                    Procedural Background

    On March 31, 1994, the Secretary filed motions with the judge to approve settlements in

these cases. The settlements would have required payment of $550 of the $2,088 in proposed
penalties against Madison, and $1,000 of the $3,000 in proposed penalties against PSSI. By
order dated April 7, 1994, Judge Feldman denied the Secretary's motions on the grounds that the
Secretary had not shown "adequate mitigating circumstances to justify the significant reductions
in the proposed penalties."

    On April 8, 1994, the Secretary filed "Amended Motions to Approve Settlement," which

provided that Madison and PSSI would pay in full the penalties proposed by the Secretary.5 The
proposed settlement also required that PSSI inspect the exhaust systems of security employees'
vehicles at least once every 90 days and that PSSI maintain and, upon request, produce to MSHA
documentation of such inspections.

   The judge thereafter issued an order requiring Madison and PSSI to provide additional

information. He ordered the Secretary to explain, inter alia, why the proposed inspection
program would be adequate to abate "the hazard associated with exposure to carbon monoxide
poisoning." Order Requesting Clarification at 3. The judge reserved ruling on the motions
pending review of the requested information. On May 16, 1994, the parties filed a Joint Response
to Order Requesting Clarification.

    4
        Section 48.31( a ) provides in pa rt:

                    Opera tors sha ll provide to . . . m iners . . . a tra ining pro-
            g ra m before su ch m iners com m ence their w ork du ties.
    5
       On M a y 16, 1994, the Secreta ry filed a "Second A m ended M otion to A pprove

Settlem ents" ( "S. M ot. to A pprove Set."), w h ich consolida ted the tw o ea rlier a m ended m otions.

                                                 4

Page 5

     On June 8, 1994, the judge denied the motions to approve the settlement on the grounds

that, in order to determine the appropriate civil penalties, disputed facts concerning the adequacy
of the proposed vehicle inspection program had to be resolved. Order Denying Motions for
Approval of Settlements, Prehearing Order and Notice of Hearing ("June 8th Order").

     The judge scheduled the matter for hearing and ordered the Secretary to call as a witness

the Chief Medical Examiner of the West Virginia Department of Health and Human Services to
testify to:

           the circumstances surrounding the decedent's death and his expert
           opinions concerning the health hazards associated with the short-
           term and continued long-term exposure to exhaust fumes and/or
           carbon monoxide poisoning.

June 8th Order at 6. The Secretary was also directed to call:

           a minimum of two qualified safety and health experts employed by
           the Occupational Safety and Health Administration (OSHA) . . . to
           testify whether remaining in a stationary vehicle for prolonged
           periods with the engine and heater running is a "recognized hazard"
           that is prohibited by Section 5(a)(1) or Section 5(a)(2) of the
           Occupational Safety and Health Act of 1970, 29 U.S.C. ' 654(a)(1)
           and (a)(2).

Id. The judge further ordered the Secretary to call "[a] licensed qualified automobile mechanic"
to testify about "the procedures and requisite qualifications for performing an adequate inspection
of a motor vehicle's exhaust system. . . ." Id.

     On July 19, 1994, the Secretary submitted a witness list. He stated that he did not intend

to call as witnesses the individuals identified in the June 8th Order and that the parties intended to
submit a joint motion for summary decision. The judge construed the latter statement to be a
joint motion for summary decision, which he denied on July 22, 1994. Order Denying Joint
Motion for Summary Decision ("July 22nd Order"). In his order, the judge identified what he
described as disputed material facts relating to the adequacy of the proposed inspection program
to remove hazards to security guards posed by carbon monoxide poisoning. Id. at 4. The judge
advised the parties of his intention to call the Chief Medical Examiner as a "court" witness. Id. at
4-5.

    The Secretary filed a "Motion for Summary Judgment" on August 25, 1994. He

contended that the undisputed facts established the violations alleged in the citations as well as the
statutory criteria to determine an appropriate penalty. S. Mot. for Summ. J. at 7-11. He noted
respondents' good faith attempts to achieve rapid compliance. Id. at 12. The Secretary argued
that the five issues identified by the judge in the July 22nd Order were not properly before him.

                                              5

Page 6

Id. at 15-18. The Secretary requested by letter that, in the event his motion was denied, the judge
certify the denial to the Commission pursuant to Commission Rule 76(a)(1)(i). Madison
supported by letter the Secretary's motion.

    The judge denied the Secretary's motion on August 29, 1994. Order Denying the

Secretary's Motion for Summary Judgment ("August 29th Order"). The judge ruled that, in order
to determine the appropriateness of the proposed civil penalties, it was necessary to determine
whether the hazard training and the vehicle inspection program were adequate to eliminate the
danger of carbon monoxide poisoning to security guards who remain in their vehicles for long
periods seeking heat and shelter. August 29th Order at 2. The judge also refused to certify to the
Commission for interlocutory ruling either his July 22nd or August 29th order as requested by
Madison and the Secretary, respectively. The instant petition for interlocutory review followed.

                                                 III.

                                            Disposition

   The issue before us is whether the judge properly denied the parties' motions to approve

settlement.6 In the judge's view, unresolved factual issues concerning the adequacy of abatement
precluded his approval of the settlement.

    Settlements are committed to the "sound discretion" of the Commission and its judges.

See, e.g., Medusa Cement Co., 12 FMSHRC 1913, 1914 (October 1990). Although Commission
judges are not "bound to endorse all proposed settlements," their rejections of settlements, as well
as approvals, must "be based on principled reasons." Knox County Stone Co., 3 FMSHRC 2478,
2480 (November 1981). On review, the Commission will not disturb a judge's approval or
rejection of a settlement if it is supported by the record, is consistent with the six statutory criteria
specified in section 110(i) of the Act for the assessment of civil penalties, and is not otherwise
improper. Id. In reviewing such cases, "abuses of discretion or plain errors are not immune from
reversal." Id.

   In rejecting the parties' settlement, the judge focused on Section 110(i) of the Mine Act,

30 U.S.C. § 820(i), which sets forth six criteria for determining the appropriateness of a civil

    6
        In his M otion for Su m m a ry Ju d g m ent, the Secreta ry requ ested the ju d g e to "m em o-

ria lize" in a n order the provisions of the settlem ent proposa l, in pa rticu la r the vehicle
inspection prog ra m . S. M ot. for Su m m . J. a t 14. A ccording ly, w e constru e the Secreta ry' s
M otion for Su m m a ry Ju d g m ent a s a m otion to a pprove the settlem ent a g reem ent.

                                                  6

Page 7

penalty. The judge stated that "demonstrated good faith . . . in attempting to achieve rapid
compliance," the sixth criterion, involved "a factual question that must be resolved through the
testimony of expert witnesses in the hearing process." August 29th Order at 2. He identified as
the central issue:

             [W]hether the respondents have adequately removed the risk of
             carbon monoxide poisoning through hazard training and vehicle
             maintenance, to security personnel who continue to use stationary
             vehicles for prolonged periods of time with no alternative means of
             warmth and shelter.7

Id.

    7
             The A u g u st 29th Order incorpora tes by reference the Ju ly 22nd Order, w h ich

listed the follow ing five fa ctu a l inqu iries tha t the ju d g e sta ted w ere "u nresolved issu es of
m a teria l fa ct":

                      1. The na tu re of ca rbon m onoxide intoxica tion a nd the
             correla tion betw een the level of toxicity a nd the period of expo-
             su re;

                      2. Given the cha ra cteristics of ca rbon m onoxide, w h ether
             the risk of ca rbon m onoxide intoxica tion to individu a ls w h o seek
             w a rm th a nd shelter in sta tiona ry vehicles for extended periods of
             tim e ca n be effectively a llevia ted by the m ethods proposed by the
             respondents;

                      3. W hether rem a ining in a sta tiona ry vehicle for
             prolong ed periods w ith the eng ine a nd hea ter ru nning is a
             "recog nized ha za rd" tha t is prohibited by . . . the Occu pa tiona l
             Sa fety a nd Hea lth A ct of 1970 . . . ;

                     4. The qu a lifica tions of the individu a l a ssig ned by [PSSI]
             to inspect em ployee vehicle exha u st system s a nd the m ethods of
             su ch inspection; a nd

                      5. The requ isite qu a lifica tions, equ ipm ent a nd procedu res
             necessa ry for perform ing a n a dequ a te vehicle exha u st system
             inspection.

Ju ly 2 2 nd Order a t 4.

                                                   7

Page 8

    The scope of abatement is determined by the underlying citation and by the requirements

of the statutory provision, standard or regulation alleged to have been violated. See Mid-
Continent Resources, Inc., 11 FMSHRC 505, 509-11 (April 1989). In determining whether the
factual issues set forth by the judge were material to his consideration of whether the operator had
demonstrated good faith in attempting to achieve rapid compliance, we examine the scope of the
citations and the actions required for abatement.

    The citations are narrowly drawn. They do not allege a pattern or practice of shoddy

vehicle maintenance or a general failure by Madison to provide hazard training to its miners.
Rather, they address a particular defective vehicle that contributed to the fatality and the failure to
train security guard Garrett. The regulations at issue also impose specific requirements. The
Commission has held that section 77.404(a):

            imposes two duties upon an operator: (1) to maintain machinery
            and equipment in safe operating condition, and (2) to remove
            unsafe equipment from service. Derogation of either duty violates
            the regulation.

Peabody Coal Co., 1 FMSHRC 1494, 1495 (October 1979). This standard does not require
unsafe equipment to be repaired so long as it is immediately removed from service. See Alabama
By-Products Corp., 4 FMSHRC 2128, 2130 (December 1982) ("[O]nce unsafe equipment is
removed from service abatement is completed.") (construing identical language in section
75.1725(a)). Section 48.31(a) is also specific, requiring operators to provide training to
individuals before they begin working at a mine. Abatement is completed when the affected
miners are trained. See Secretary of Labor v. Western Fuels-Utah, Inc., 900 F.2d 318, 319-20
(D.C. Cir. 1990) (operator abated violation of section 48.7 by task training affected employee).

     In the instant case, the Secretary determined that respondents abated the unsafe equipment

violation when they removed the defective vehicle from service. See Alabama By-Products, 4
FMSHRC at 2130. Likewise, by citing only the failure to train a particular employee, the
Secretary did not trigger a broad duty of abatement with respect to that violation. Thus, the issue
identified by the judge in the August 29th Order, "whether the respondents have adequately
removed the risk of carbon monoxide poisoning through hazard training and vehicle main-
tenance," is immaterial to the issue of whether the respondents demonstrated good faith in
attempting to abate the narrow violations charged in this particular instance.8 Accordingly, we

    8
         W e do not su g g est tha t the du ty to a ba te is necessa rily a lw a ys na rrow in scope. The

na tu re of a g iven viola tion or the reg u la tory or sta tu tory provision viola ted m a y lea d the
Secreta ry to im pose broa d a ba tem ent du ties. In the present ca se, for exa m ple, the Secreta ry
issu ed im m inent da ng er orders in connection w ith the u nsa fe equ ipm ent cita tions. In discu ssing
the M ine A ct' s im m inent da ng er provision, the Sena te dra fters stressed the im porta nce of
a dequ a tely a ba ting su ch ha za rds:

            If m iners a re to receive the continu ing protection tha t Cong ress

                                                 8

Page 9

conclude that the judge erred to the extent that he denied the settlement motions because of a
determination that the parties had failed to provide facts demonstrating the good faith of the
person charged in attempting to achieve rapid compliance after notification of a violation. We
therefore vacate the judge's orders that effectively disapproved the proposed settlement.

                                             IV.

                                           Remand

     We remand for the judge to reconsider the settlement motions without recourse to the

erroneous abatement analysis discussed above. The general principles governing a judge's
disposition of a proposed settlement are well established. Section 110(k) of the Act provides that
no contested proposed penalty "shall be compromised, mitigated, or settled except with the
approval of the Commission." 30 U.S.C. § 820(k). See also Commission Procedural Rule 31, 29
C.F.R. ' 2700.31. Section 110(k) charges the Commission and its judges with the duty "to
protect the public interest by ensuring that all settlements of contested penalties are consistent
with the . . . Act's objectives." Knox County, 3 FMSHRC at 2479. The judge shall review the
adequacy of the penalties proposed to settle this matter in light of the other five statutory penalty
criteria, which he did not discuss in his prior orders. In that regard, of course, he is not bound by
the parties' assertions concerning these criteria. Knox County, 3 FMSHRC at 2479-81. Cf.

              intends inspectors a nd opera tors m u st look to the u nderlying
              conditions a nd pra ctices ca u sing a n im m inent da ng er. Section
              10 [7]\( a \) thu s requ ires the opera tor to correct the root ca u ses a s
              w ell a s the sym ptom s of m ine hea lth a nd sa fety problem s w h ich
              g a ve rise to the order.

S. Rep. No. 181, 95th Cong., 1st Sess. 37 (1977) ("S. Rep."), reprinted in Senate Subcommittee
on Labor, Committee on Human Resources, 95th Cong., 2d Sess., Legislative History of the
Federal Mine Safety and Health Act of 1977, at 625 (1978) ("Legis. Hist."). Thu s, in the
circu m sta nces presented here, the Secreta ry ha d the a u thority to inclu de broa der a ba tem ent
du ties tha n he a ctu a lly requ ired.

                                              9

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Sellersburg Stone Co., 5 FMSHRC 287, 293-94 (March 1983), aff'd, 736 F.2d 1147 (7th Cir.
1984).

    Although the vehicle inspection program that the operator proposes to adopt as part of

the settlement is not relevant to a determination of whether this operator "exercised good faith in
achieving compliance after notification of a violation," we do not imply that the program's efficacy
cannot be a factor in the judge's determination of whether to approve or reject the proposed
settlement. In determining whether to approve a proposed settlement a judge must consider, inter
alia, whether the amount proposed will accomplish the underlying purpose of a civil penalty -- to
encourage and induce compliance with the Mine Act and its standards. Co-op Mining Co., 2
FMSHRC 3475, 3475-76 (December 1980), citing S. Rep. 41, reprinted in Legis. Hist. 629. See
also Southern Ohio Coal Co., 4 FMSHRC 1459, 1464 (August 1982); S. Rep. 42-45, reprinted
in Legis. Hist. 630-33. The "affirmative duty" that section 110(k) places on the Commission and
its judges to "oversee settlements," Co-op Mining, 2 FMSHRC at 3475-76, necessarily requires
the judge to accord due consideration to the entirety of the proposed settlement package,
including both its monetary and non-monetary aspects.

      The requirement that a judge consider all elements of a settlement presented to him for

approval is consistent with the settled principle that, in considering whether to approve a
proposed settlement, a judge must determine whether it is "fair, adequate and reasonable." Young
v. Katz, 447 F.2d 431, 433 (5th Cir. 1971). Accord, United States v. Seymour Recycling Corp.,
554 F. Supp. 1334, 1337 (S.D. Ind. 1982); see also, United States v. Akzo Coatings of America,
Inc., 949 F.2d 1409, 1426 (6th Cir. 1991) (settlement should be reviewed for "fairness,
reasonableness and consistency with the statute"); United States v. City of Jackson, Mississippi,
519 F.2d 1147, 1151 (5th Cir. 1975) (judge must assure himself that the settlement's terms "are
not unlawful, unreasonable or inequitable"); Neuwirth v. Allen, 338 F.2d 2, 3 (2d Cir. 1964)
(judge correctly determined that "the settlement was fair"). These inquiries are bottomed on a
concern that the settlement "adequately protects the public interest." United States v. Seymour
Recycling, 554 F. Supp. at 1337; see also United States v. Ketchikan Pulp Co., 430 F. Supp. 83,
86 (D. Alaska 1977) (judge should determine that settlement "adequately protects the public
interest and is in accord with the dictates of Congress"). In assessing the fairness of the
settlement and whether it is consistent with the public interest, a judge must examine "all
relief . . . , not just the [monetary] provisions of the settlement . . . ." Luevano v. Campbell, 93
F.R.D. 68, 86 (D.D.C. 1981) (emphasis supplied); see also, United States v. Allegheny-Ludlum
Industries, Inc., 517 F.2d 826, 864 (5th Cir. 1975) (monetary relief must be viewed in light of
other relief provided in settlement), cert. denied sub nom. Harris v. Allegheny-Ludlum Industries,
Inc., 425 U.S. 944 (1976).

    Our dissenting colleagues err in concluding that the Mine Act "clearly" proscribes

Commission judges from considering non-monetary settlement provisions presented to them by
the parties for approval. Slip op. at 13. In construing the Mine Act, we are guided by the
principle that "the primary dispositive source of statutory construction is the wording of the
statute itself." Association of Bituminous Contractors v. Andrus, 581 F.2d 853, 861 (D.C. Cir.

                                            10

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1978). Section 110(k) of the Act, which governs settlements, does not contain language
restricting in any way the scope of the Commission's inquiry in reviewing them. Had Congress
desired to depart from the law governing the scope of review of settlements, it could easily have
inserted in section 110(k) terms limiting the scope of the Commission's review of settlements. It
did not do so, and the Commission is without authority to insert such terms itself.

     The parties have made the vehicle inspection program part of the settlement package and

they relied on its inclusion in arguing to the judge that the penalties proposed were consistent with
the statutory criteria and should be approved. S. M ot. to A pprove Set. a t 3- 4 . It is appropriate
for the judge to consider the weight to be given to each of the statutory penalty criteria in light of
the planned inspection program's contribution to compliance. To the extent the parties are
unsuccessful in persuading the judge of the efficacy of the inspection program as currently agreed
to, the judge need not accord the program significance in his evaluation of the penalty proposed in
the settlement. If the judge disagrees with the proposed penalties, he is free to reject the
settlement and direct the matter for hearing. Knox County, 3 FMSHRC at 2481-82.
Alternatively, since the parties couched their renewed settlement approval motion in terms of a
motion for summary judgment (see n.5, supra), the judge may examine the record and, if there are
no factual disputes relating to liability and penalty assessment, issue a decision based on the
record. See Knox County, 3 FMSHRC at 2481-82 & n.5. Rejection of the current settlement
proposal would be without prejudice to the parties' resubmission of a settlement package tailored
to meet the judge's objections.

                                             V.

                                         Conclusion

    For the foregoing reasons, we vacate the judge's orders denying the motions for summary

decision and the amended motions for approval of settlement, and remand for further proceedings
consistent with this decision.

                                           ________________________________
                                           Mary Lu Jordan, Chairman




                                           ________________________________


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Marc Lincoln Marks, Commissioner

12