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[DOCID: f:lk20011o1.wais]

 
THE OHIO VALLEY COAL CO.
LAKE 2001-1
March 28, 2001


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, Suite 1000
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041


                         March 28, 2001

SECRETARY OF LABOR,             : CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA)         : Docket  No. LAKE 2001-1
                   Petitioner   : A.C. No. 33-0159-04153
                                :
               v.               :
                                :
THE OHIO VALLEY COAL CO.,       : Powhatan No. 6 Mine
                   Respondent.  :

                       ORDER TO SHOW CAUSE

     This case is before me on a Petition by the Secretary to
assess a Civil Penalty for the alleged violation of 30 C.F.R.
� 75.220(A)(1).  The Petition proposed a Civil Penalty of
$1,270.00.  After an answer was filed, I issued a Prehearing
Order to direct the parties to first confer concerning the
possibility of settlement and, if settlement proved impossible,
to report to me concerning their respective positions on the
legal and factual merits.  On  March 15, 2001,
I received a Joint Motion to Approve Settlement and Dismiss
Proceedings.  The settlement agreement explained in the Motion
proposed a Civil Penalty of $765.00.  The only reason
given for the reduction in the proposed Civil Penalty was the
action of the Respondent in promptly abating the violation as
instructed.  A review of Exhibit A attached to the Petition
indicates that the proposed Civil Penalty of $1,270.00 was
calculated by giving a credit of $445.00 for promptly abating
the violation as instructed.

     The concepts articulated by Judge Merlin in Secretary of
Labor v. Marc Bowers, etc., 21 FMSHRC 409 (Mar. 1999) would
appear to make it inappropriate for me to approve a settlement
which is not consistent with the criteria in Section 110 of the
Federal Mine Safety Act.  In this case it appears that the
proposed settlement is calculated by double counting the
abatement efforts of the mine operator.  Double counting would
not appear to be consistent with Section 110.  Since my
prospective is based on a review of less than the record
available to Counsel, I consider this to be only a tentative
conclusion.  The parties should have the opportunity to explain
and support their agreement.  It is, therefore,

     ORDERED that the parties are given until April 27, 2001,
to Show Cause  why the settlement agreement should not be
disapproved and why the Motion to Approve Settlement should not
be denied.  The parties may file legal argument or factual
information as they consider necessary.  An opportunity for oral
argument by telephone conference call will be granted upon
request.  In the absence of a showing of sufficient cause for
approval of a settlement agreement, this case will be scheduled
for hearing on an expedited basis.


                                  Irwin Schroeder
                                  Administrative Law Judge
                                  703-756-5232


Distribution:

Maya K. Ewing., Esq., Office of the Solicitor, U.S. Department of
Labor, 230 S. Dearborn St., 8th Floor, Chicago, IL 60604
(Certified Mail)

Jerry M. Taylor, Safety Director, The Ohio Valley Coal Company,
56854 Pleasant Ridge Rd., Alledonia, OH 43902
(Certified Mail)

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