LOGAN COUNTY FARM ENTERPRISES, INC.

OSHRC Docket No. 78-4535

Occupational Safety and Health Review Commission

March 26, 1979

COUNSEL:

[*1]

Baruch A. Fellner, Office of the Solicitor, USDOL

James E. White, Acting Reg. Sol., USDOL

Clyde N. Cheatham, Mgr., Farm Enterprises, Inc., for the employer

OPINION:

DIRECTION FOR REVIEW AND ORDER

BY THE COMMISSION: The February 23, 1979 order of Administrative Law Judge Irving Sommer is directed for review under 29 U.S.C. 661(i) and Commission Rule 91a(a), 29 C.F.R. 2200.91a(a).

On September 1, 1978, two citations were issued to the Respondent, Logan County Farm Enterprises ("Logan"), alleging 12 serious and 6 nonserious violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. Total penalties in the amount of $3040 were proposed by the Secretary of Labor for the serious violations, and no penalty was proposed for the nonserious violations. Logan timely contested the citations and the parties subsequently entered into a negotiated settlement agreement. The settlement filed with the judge provides for the reduction of the proposed penalty for the serious violations to $0, the withdrawal of Logan's notice of contest, the abatement of all violations by January 5, 1979, and consent by Logan for a reinspection by the Secretary to verify abatement. [*2]

In his February 23, 1979 order, Judge Sommer correctly noted that section 17(b) of the Act, 29 U.S.C. 666(b), requires the assessment of a penalty for serious violations. n1 The judge concluded that the parties' agreement that no penalty would be assessed for the serious violations evidenced their intent that the violations be classified as nonserious. Accordingly, the judge modified the agreement and approved it as modified.

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n1 29 U.S.C. 666(b) provides the following:

(b) Any employer who has received a citation for a serious violation of the requirements of section 5 of this Act, of any standard, rule, or order promulgated pursuant to section 6 of this Act, or of any regulations prescribed pursuant to this Act, shall be assessed a civil penalty of up to $1,000 for each such violation.

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In a March 12, 1979 letter to Judge Sommer, the Secretary objected to the judge's modification of the settlement agreement. The Secretary indicated that this case involves numerous "serious 'grain elevator' citations," that [*3] Logan is a relatively small employer that had "agreed to undertake expensive abatement" in exchange for the penalty reduction, and that the "original settlement agreement served the purposes of the Act." The Secretary further stated that the judge's order does not reflect the intent of the parties, and stated that he would be "willing" to renegotiate a small penalty with the employer.

On the basis of the Secretary's representations, we conclude that the judge's order approving a modified settlement agreement in this case does not effectuate the intent of the parties. Moreover, the penalty provision of the settlement agreement entered into by the parties is inconsistent with 29 U.S.C. 666(b) and therefore cannot be approved. Commission Rule 100(a), 29 C.F.R. 2200.100(a). n2 Accordingly, this case is remanded for further proceedings.

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n2 Rule 100 Settlement.

(a) Settlement is encouraged at any stage of the proceedings where such settlement is consistent with the provisions and objectives of the Act.

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IT IS [*4] SO ORDERED.