CAROLINA POWER AND LIGHT COMPANY

OSHRC Docket No. 6130

Occupational Safety and Health Review Commission

February 7, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners.

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A May 6, 1974, decision of Review Commission Judge John S. Patton, which affirmed a settlement agreement between the parties herein, is before this Commission for review pursuant to 29 U.S.C. 661(i). That decision is affirmed except insofar as it states that.

(a) The respondent is found to be in violation of section 5(a)(2) of the Act and Occupational Safety and Health Standard 29 CFR 1910.22(d)(2);

(b) A penalty in the amount of $600 is assessed for said violation; and

(c) The proposed requirement that the respondent immediately abate said violation is approved.

Respondent and complainant's motions to strike the same are hereby granted.

CONCURBY: CLEARY

CONCUR:

CLEARY, COMMISSIONER, concurring: I concur in the disposition ofthis case. The three paragraphs of the Judge's order that are struck are only surplusage. Under the terms of the consent order the parties have in effect agreed that nothing contained in their agreement is to be construed to limit the right of the Secretary of Labor to use the consent order pursuant to proceedings under the Occupational Safety and Health Act of 1970. [*2] This being clear, I am not concerned with the exculpations of the agreement.

I do not endorse the position of the Secretary of Labor that:

Once the Administrative Law Judge approved the settlement agreement and the notice of contest was withdrawn, there was nothing further for the Judge to decide. In addition, the three paragraphs of the Judge's "Order Approving Settlement Agreement" which the respondent seeks to have stricken were coram non judice and therefore void.

First of all, in my view the full Commission has plain statutory authority to review the actions of its Administrative Law Judges. Secondly, although the Commission must under the Administrative Procedure Act give parties an opportunity to determine controversies by consent, this opportunity may be limited by "public interest" considerations. See American Airlines, No. 6087 (December 4, 1974). The jurisdiction of the Commission to apply such considerations to agreed dispositions is clear.

[The Judge's decision referred to herein follows]

PATTON, JUDGE: This case is before the undersigned Judge on the complaint of the Secretary of Labor, United States Department of Labor, hereinafter referred [*3] to as the Secretary, versus Carolina Power and Light Company, hereinafter referred to as respondent, alleging that respondent has violated section 5(a)(2) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590; 29 U.S.C. 651, et seq. ), hereinafter referred to as the Act and Occupational Safety and Health Standards 29 CFR 1910.22(d)(2). It is alleged that respondent violated said Act and standard by permitting an accumulation of fly ash on the floor in Unit #2 Drum Enclosure, in a load substantially greater than that for which the structure was designed or approved. Respondent has filed a settlement agreement in which respondent moves to withdraw its notice of contest of citation. It appears to this Judge that the violation of said Act and standard has been abated; that respondent has tendered payment to the complainant of $600 in payment of the proposed penalty and that the respondent has properly posted for ten days in its place of business said settlement agreement at a place where employees affected thereby may see same. Said settlement agreement has been duly executed by both parties.

It appears to this Judge from the above facts that it would effectuate the [*4] purposes of the Act for said settlement agreement to be approved.

It is therefore Ordered that:

Said settlement agreement be and hereby is approved and the motion of respondent to withdraw its notice of contest is granted.

The respondent is found to be in violation of section 5(a)(2) of the Act and Occupational Safety and Health Standard 29 CFR 1910.22(d)(2).

A penalty in the amount of $600 is assessed for said violation.

The proposed requirement that the respondent immediately abate said violation is approved.