Webster Dudley Sand and Gravel, Inc. (ALJ decision, February 18, 1998)

Plain-English summary

Webster Dudley Sand and Gravel faced a civil penalty proceeding at its Webster Plant. The Secretary asked the judge to approve a settlement under which the company would pay half the originally proposed penalty. Judge David Barbour denied the motion because it did not explain the facts supporting the cited violations or the proposed penalty amount. The judge stated that the Commission’s rules require the moving party to explain the reasons for a settlement so the judge can independently assess whether it is valid. The parties were given 10 days to file an acceptable motion, or the case would proceed to a scheduled hearing in Worcester, Massachusetts.

Decision snapshot

• Governing provision: 29 C.F.R. § 2700.31
• Outcome: Settlement approval was denied and the hearing notice was reinstated.
• Key point: A settlement motion must provide enough factual and penalty information for the judge to independently evaluate it.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

February 18, 1998

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
:
ADMINISTRATION (MSHA), : Docket No. YORK 97-29-M
Petitioner : A. C. No. 19-00370-05515
v. :
: Webster Plant
WEBSTER DUDLEY SAND AND
:
GRAVEL, INC.,
:
Respondent
:

ORDER DENYING MOTION TO APPROVE SETTLEMENT AND
NOTICE OF HEARING

In this civil penalty case, counsel for the Secretary has filed a motion to approve a proposed settlement. The motion is inadequate, and it is DENIED.

The motion states the parties believe payment by the Respondent of half the penalty originally proposed is “in the public interest and will further the intent and purpose of the ... Act.” The motion asks that I accept on faith the representation that “counsel for the Secretary reviewed the violations cited and the data which formed the basis for the proposed assessment and ... deter- mined the [settlement amount] is fair and equitable.”

While it is reassuring to know counsel has concluded the settlement “is fair and equitable,” under the Act, the ultimate judgement on the validity of this conclusion rests with me. This means that I too must review the violations cited and the data which form the basis for the proposed settlement. To do so I must know the facts that support the proposed penalties agreed to by the parties. This is why the Commission’s regulations contemplate the moving party explain the reasons for the proposed settlement (20 C.F.R. § 2700.31), and why, when no reasons are given and there is no basis upon which to judge the proposed settlement, the motion must be denied.

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Unless, an acceptable motion to approve the settlement is filed and approved within the next 10 days, the parties are advised the matter will be heard at 8:30 a.m., Friday, March 13, 1998, in Worcester, Massachusetts. A specific hearing site will be designated later. The requirements of the previously issued notice of hearing are reinstated.

David Barbour
Administrative Law Judge

Distribution:

Ralph R. Minichiello, Esq., Office of the Solicitor, U. S. Department of Labor, One Congress Street, 11th Floor, P. O. Box 8396, Boston, MA 02114 (Certified Mail)

Dorothy Halloran, Office Manager, Webster Dudley Sand and Gravel, Inc., P. O. Box 186, Webster, MA 01570 (Certified Mail)

dcp

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