.
EASTERN ASSOCIATED COAL CORP.
March 20, 1997
WEVA 97-52


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                            March 20, 1997


SECRETARY OF LABOR,           :    CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH      :
  ADMINISTRATION (MSHA),      :    Docket No. WEVA 97-52
               Petitioner     :    A.C. No. 46-06448-03534
                              :
          v.                  :
                              :    Rocklick Preparation Plant
EASTERN ASSOCIATED COAL CORP.,:
               Respondent     :

         ORDER DENYING MOTION TO ENFORCE SETTLEMENT AGREEMENT,
             MOTION TO DISMISS AND MOTION FOR CONTINUANCE

     In its Motion to Enforce Settlement Agreement,
Respondent maintains that, during the course of settlement
negotiations, a Conference and Litigation Representative (CLR)
for the Department of Labor, had agreed at a
February 20, 1997, meeting, to vacate Citation No.
4400179.  It is represented by Respondent that the
CLR thereafter advised its representative on
February 26, 1997, that he would, in fact, not
vacate the citation and advised such
representative that the Department of Labor's Mine
Safety and Health Administration (MSHA) intended
to litigate the citation before an administrative
law judge.  Respondent seeks in the instant motion
to "enforce" what it maintains is a "binding
agreement" between the parties to vacate  Citation
No. 4400179.

     The validity of a settlement or release agreement is,
in the first instance, governed by the applicable
contract law and that law is ordinarily the law of
the place where it is made--in this case it is
alleged to be the State of West Virginia.
Williston on Contracts, Third Edition § 1792.
U.S. v. J.C. Bradford and Co., 616 F.2d 167, 169
(5th Cir. 1980); Village of Kaktovika v. Watt, 689
F.2d 222, 230 (D.C. Cir. 1982).  In certain cases
involving litigants under a nationwide federal
program however, federal law may control.  U.S. v.
Kimbell Foods, Inc., 440 U.S. 715, 727 (1979); Mid
South Towing v. Harwin, Inc., 733 F.2d 386, 389
(5th Cir. 1984), Fulgance v. J. Ray McDermett &
Co., 662 F.2d 1207, 1209 (5th Cir. 1981), Tarmann
v. International Salt Co., 12 FMSHRC 1291 (June
1990).  Since there is no conflict in the basic
principles of contract law here at issue there is
no need to decide in this preliminary analysis
which law is applicable.

     Since the Secretary has the unilateral authority
to vacate citations without any settlement motion or
agreement, the question arises as to whether there
was, in this case, any legal consideration to
support the alleged promise by the CLR to vacate
the instant citation.  Consideration has been
defined as some right, interest, profit or benefit
occurring to one party, or some forebearance,
detriment, loss or responsibility given, suffered
or undertaken by another.  Cook v. Heck's Inc.,
176 W.Va. 368, 342 S.E.2d 453 (1986); Adkins v.
Inco. Alloys Int'l Inc., 187 W.Va. 219, 417 S.E.2d
910 (1992).

     Respondent does not allege what, if any,
consideration existed.  It is, of course, a 
fundamental principle of the law of contracts that
every promise or agreement, in order to be enforceable,
must have a consideration to support it.  4B M.J.,
Contracts, § 31.  Hamilton v. Harper, 185 W.Va.
51, 404 S.E.2d 540 (1991).  Since a settlement
agreement is a contract, consideration is a
prerequisite to enforceability of such an
agreement.  Hamilton v. Harper, supra.

     Thus even assuming, arguendo, that Respondent's 
allegations herein are true, there is insufficient basis
for granting the motions "to enforce settlement
agreement and to dismiss.  No binding "settlement
agreement" could have existed as alleged by
Respondent and no further legal analysis is
necessary to deny its  Motion to Enforce
Settlement Agreement and Motion to Dismiss.  The
Motions are accordingly denied.  The Respondent's
Motion for Postponement is also denied.


                           Gary Melick
                           Administrative Law Judge
                           703-756-6261

Distribution:

Robert W. Simmons, Conference and Litigation Representative, U.S.
Department of Labor, MSHA, 100 Bluestone Road, Mt. Hope, WV  25880
(Certified Mail)

Caroline A. Henrich, Esq., Eastern Associated Coal Corp., P.O. 
Box 1233, Charleston, WV 25324  (Certified Mail)
/jf