FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION
303-844-5267/FAX 303-844-5268
June
20, 2012
|
SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA), |
: : : : : : : : : : : |
CIVIL PENALTY PROCEEDING
Docket No. WEST 2011-1228-M A.C. No. 04-01943-256890 7/11 Materials |
DECISION
APPROVING SETTLEMENT
Before: Judge Manning
This
case is before me upon a petition for assessment of a civil penalty under
section 105(d) of the Federal Mine Safety and Health Act of 1977, as amended
(the “Mine Act”). The Secretary has
filed an amended motion to approve settlement of Citation No. 8609256. The originally assessed amount was $5,000.00. The Secretary agrees to modify the citation
to low negligence and Respondent agrees to a reduced penalty of $750.00.
As
amended, the citation alleges a violation of 30 C.F.R. § 50.10(b). That regulation requires a mine operator to
notify MSHA within 15 minutes “once the operator knows or should know that an
accident has occurred involving . . .
[a]n injury of an individual at the mine which has a reasonable potential to
cause death.” In the present case a
miner fell and hit his head, which resulted in a concussion and bleeding. In its answer, Respondent stated that it does
not believe that the injury was life threatening but it did report the injury
to MSHA within 15 minutes after it learned from the hospital that the injury
was serious.
Section
110(a)(2) of the Mine Act provides that “[t]he operator of a coal or other mine
who fails to provide timely notification to the Secretary as required under
section 103(j) (relating to the 15 minute requirement) shall be assessed a
civil penalty by the Secretary of not less than $5,000 and not more than
$60,000.” 30 U.S.C. § 820(a)(2). Section 103(j) requires mine operators to
notify MSHA within 15 minutes “of the time at which the operator realizes
that . . . an injury . . . of an individual at the mine which
has a reasonable potential to cause death, has occurred.” 30 U.S.C. §
813(j). In settling this case,
Respondent agrees to withdraw its contest of the citation and the Secretary
agrees to reduce the negligence to low.
The reduction in the negligence is based on Respondent’s representation
that it called 911 immediately after the miner suffered the injury and reported
the injury to MSHA within 15 minutes of learning from medical personnel that
the injury was potentially serious.
I
find that the provisions of section 110(a)(2) of the Mine Act apply in this
case. When the Mine Act was amended to
include the language of section 110(a)(2), the Secretary amended section 50.10
to comply with that statutory language.
In this case, the Secretary proposed a civil penalty of $5,000.00 for
the alleged violation in compliance with the statutory language. During settlement negotiations, the Secretary
recognized that Respondent would present evidence at a hearing that it
contacted MSHA within 15 minutes of learning from medical personnel that the
injury was potentially serious.
Respondent contends that, although the injury was serious, it was not
life threatening and it notified MSHA in an abundance of caution. Recognizing that there are genuine issues of
material fact as to whether there was a violation of the regulation, the
parties agreed to reduce the level of negligence attributable to Respondent to
settle the case.
Under section 110(i) of the Mine
Act, the Commission has the authority to assess all civil penalties and,
although the Secretary proposes penalties, it is the Commission that is
responsible for assessing penalties. Sellersburg Stone Co., 5 FMSHRC 287,
290-91 (Mar. 1983), aff’d. 736 F. 2d
1147 (7rh Cir. 1984). The Commission’s
assessment of penalties is a de novo
determination based on the six statutory criteria set forth in section 110(i)
of the Mine Act. I find that section
110(a)(2) of the Mine Act is directed only to the Secretary and not to the
Commission or its administrative law judges.
On that basis, I conclude that I have the authority to assess a penalty
for a violation of section 50.10 that is less than $5,000.00 in appropriate
circumstances. At least one other
administrative law judge has reached the same conclusion. E.S.
Stone & Structure, Inc. 33 FMSHRC 515, 520 (Jan. 2011) (ALJ).
After considering the facts and
circumstances in this case and all six of the statutory criteria, I find that a
penalty of $750.00 is reasonable and appropriate. The parties stipulated to the following. The issuing MSHA inspector determined that
the violation was neither serious nor significant and substantial. The operator had a history of 17 paid
violations over the 15 months prior to May 2, 2011, the date of the present
citation. The mine worked about 9,000
hours in 2011 and employed about four miners.
The violation was abated in good faith and the penalty will not affect
the operator’s ability to continue in business.
Respondent’s negligence was low.
I
have considered the representations and documentation submitted and I conclude
that the proposed settlement is appropriate under the criteria set forth in
section 110(i) of the Act.
/s/
Richard W. Manning
Richard
W. Manning
Administrative
Law Judge
Distribution:
Rose Darling, Esq., ,Office of
the Solicitor, U.S. Department of Labor, 90 Seventh Street, Suite 3-700, San
Francisco, CA 94103-1516
Michael Machado, Safety Manager,
7/11 Materials, Inc.,
/atc
1 Payment should be
sent to the Mine Safety and Health Administration, U.S. Department of Labor,
Payment Office,