Aggregates Manager

August 2013

Aggregates Manager Digital Magazine

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Rock Recent orders denying motions for settlement signal a need for change in the settlement process. by Adam J. Schwendeman ALJ KNOWS BEST I Adam J. Schwendeman is an associate in Jackson Kelly PLLC's Charleston, W.Va., office. He can be reached at 304-340-1077 or via email at aschwendeman@ n August of 2012, the Federal Mine Safety and Health Review Commission (FMSHRC) issued its decision in Black Beauty Coal, 34 FMSHRC 1733 (Aug. 20, 2012) which held that, in addition to the six criteria outlined in section 110(i) of the Mine Act, ALJs are empowered with the authority to consider the deterrent effect that a penalty will have on an operator when reviewing settlement proposals. Although orders denying settlement motions are nothing new, since Black Beauty, ALJs have issued several decisions denying settlement proposals. These decisions signal a possible movement toward a heightened scrutiny of settlement agreements. In February 2013, Judge William Moran rejected a proposed settlement between a conference and litigation representative (CLR) and American Coal Co.'s New Era Mine in Secretary of Labor v. The American Coal Co., 2013 WL 1385618 (Feb. 11, 2013, ALJ Moran). The settlement motion submitted by the CLR sought a 30-percent reduction for each citation involved. In Judge Moran's opinion, such an across-the-board reduction indicated that the proposed modifications were "more in the nature of yard sale, rather than any individualized review" of each citation. Unfortunately, the settlement motion failed to dispel the court's initial conclusion. According to Judge Moran, the motion failed to present relevant and persuasive facts that would justify the reductions and modifications sought. For example, the motion stated that the reductions were justified because the parties had an interest in settling the matter without further litigation. As the court noted, such a justification would warrant a similar reduction in every case. Judge Moran, therefore, denied the motion to approve the settlement. AGGREGATES MANAGER August 2013 RockLaw_AGRM0813.indd 33 33 7/17/13 1:54 PM

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