FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, NW, Suite 9500
Washington, DC 20001

August 31, 2004

 

SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :  Docket No. LAKE 2002-61
               Petitioner       :  A.C. No. 33-01159-04192
                                :
          v.                    :
                                :
THE OHIO VALLEY COAL COMPANY,   :
               Respondent       :    Powhatan No. 6 Mine

 

DECISION APPROVING SETTLEMENT ON REMAND

Before:  Judge Hodgdon

This case is before me on remand from the Commission. Ohio Valley Coal Co., No. LAKE 2002-61 (May 18, 2004).1 The matter was remanded for a determination of whether the violation was "significant and substantial" 2 and for assessment of a civil penalty. Id. The parties, by counsel, have filed a motion to approve a settlement agreement. The agreement provides that the determination of "significant and substantial" will remain as issued, i.e. that the violation was "significant and substantial" and for a reduction in penalty from $35,000.00 to $10,000.00.

Having considered the representations and documentation submitted, I conclude that the proffered settlement is appropriate under the criteria set forth in section 110(i) of the Act, 30 U.S.C. § 820(i). Accordingly, the motion for approval of settlement is GRANTED and the Respondent is ORDERED TO PAY a penalty of $10,000.00 within 30 days of the date of this order.



T. Todd Hodgdon
Administrative Law Judge



Distribution:

Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn St., 8th Floor, Chicago, IL 60604

Melanie J. Kilpatrick, Esq.Wyatt, Tarrant & Combs, LLP 250 West Main Street, Suite 1600, Lexington, KY 40507

/hs


FOOTNOTES:

1 The matter was remanded to the Commission by the U.S. Court of Appeals for the D.C. Circuit. Sec. v. Ohio Valley Coal Co., 359 F.3d 531 (D.C. Cir. 2004); 2004 WL 547606 (unpublished order granting Secretary’s motion for clarification regarding remand to the Commission).

2 The "significant and substantial" terminology is taken from section 104(d)(1) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 814(d)(1), which distinguishes as more serious in nature any violation that "could significantly and substantially contribute to the cause and effect of a . . . mine safety or health hazard."