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[DOCID: f:lk9898o.wais]
COAL MINERS INCORPORATED
June 19, 1998
LAKE 98-98
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W., 6TH FLOOR
WASHINGTON D.C. 20006-3868
June 19, 1998
SECRETARY OF LABOR : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) : Docket No. LAKE 98-98
Petitioner : A. C. No. 11-02846-03767
v. :
:
COAL MINERS INCORPORATED, : Eagle Valley Mine
Respondent :
DECISION DISAPPROVING SETTLEMENT
ORDER TO SUBMIT INFORMATION
Before: Judge Merlin
This case is before me upon a petition for assessment of
civil penalties under section 105(d) of the Federal Mine Safety
and Health Act of 1977. The Solicitor has filed a motion to
approve settlement for the four violations in this case. A
reduction in the penalties from $21,000 to $12,600 is proposed.
Order No. 4264660 was issued for a violation of 30 C.F.R. �
75.400 because coal, coal dust and float coal dust accumulated
extensively along the belt line. A reduction in the penalty from
$6,000 to $3,600 is proposed. Citation No. 4265291 was issued
for a violation of 30 C.F.R. � 75.512 because an adequate
electrical exam was not performed on the No. 9 scoop. A
reduction in the penalty from $4,000 to $2,400 is proposed.
Order No. 4265292 was issued for a violation of 30 C.F.R. �
75.512 because an adequate electrical exam was not conducted on
the continuous haulage system. A reduction in the penalty from
$6,000 to $3,600 is proposed. Order No. 4265301 was issued for a
violation of 30 C.F.R. � 75.362(b) because an adequate
examination of the belt line was not conducted on the second and
third shift. Coal and coal dust accumulations were present along
the entire length of the belt line and were not in the
examination book. A reduction in the penalty from $5,000 to
$3,000 is proposed.
The one citation and three orders which were issued under
section 104 (d)(1) of the Act, designate the alleged violations
as significant and substantial and charge that they are the
result of the operator's unwarrantable failure.
In her motion the Solicitor sets forth the tonnage of the
mine and the operator which indicate that the mine is large and
the operator is small to medium. The history of prior violations
given by the Solicitor is consistent with an average history.
Finally, the Solicitor advises that imposition of a penalty will
not affect the operator's ability to continue in business.
Permanently disabling or fatal illness or injury was rated
as highly likely in all the violations. The settlement motion
states that gravity is unchanged and remains as issued.
Negligence was rated as high in all the violations and here too,
the motion states that negligence is unchanged and remains as
written.
The Solicitor attempts to justify the recommended settlement
by stating "A reduction is warranted in this case in recognition
of Respondent's good faith efforts in abating the cited
conditions within the time granted by the MSHA inspector.
Further, the Respondent is strongly committed to enforcing
compliance more strenuously in the future." I cannot approve
the settlement motion. The Solicitor is reminded that the
Commission and its judges bear a heavy responsibility in
settlement cases pursuant to section 110(k) of the Act.
30 U.S.C. � 820(k); See, S. Rep. No. 95-181, 95th Cong., 1st
Sess. 44-45, reprinted in Senate Subcommittee on Labor, Committee
on Human Resources, 95th Cong., 2d Sess., Legislative History of
the Federal Mine Safety and Health Act of 1977, at 632-633
(1978). It is the judge's responsibility to determine the
appropriate amount of penalty, in accordance with the six
criteria set forth in section 110(i) of the Act. 30 U.S.C. �
820(i); Sellersburg Stone Company v. Federal Mine Safety and
Health Review Commission, 736 F.2d 1147 (7th Cir. 1984).
The fact that in this case high gravity and high negligence
remain as issued militates against any reduction, much less one
of 40% as is sought here. The criteria relating to size, prior
history of violations and ability to continue in business, set
forth above, do not support reduction. In addition, the
representation of good faith abatement does not warrant the
large reductions suggested by the Solicitor. Indeed, the
Solicitor does not allege that the operator made any unusual
efforts to achieve abatement, but states only that abatement was
accomplished within the time allowed. So too, the bare assertion
that the operator is committed to more strenuous enforcement,
without more, cannot support the recommended assessments. I have
previously approved a substantial reduction where the
representation of stronger future enforcement was accompanied by
downward revisions in the levels of gravity and negligence.
Florida Crushed Stone Company, Docket No. SE 98-23-M, Unpublished
(May 20, 1998). I have also approved a reduction where, unlike
this case, the operator's commitment to future enforcement was
described in detail. MCC Incorporated, Docket No. LAKE 98-44-M,
Unpublished (March 27, 1998).
If this recommended settlement were allowed, the
Solicitor would be able to obtain large reductions by merely
stating the operator would enforce the Act more strongly in the
future. Settlements must be based on more than a few pro forma
throwaway lines. In light of the foregoing, it is ORDERED
that the motion for approval of settlement be DENIED.
It is further ORDERED that within 30 days of the date of
this order the Solicitor submit appropriate information to
support her settlement motion. Otherwise, this case will be set
for hearing.
Paul Merlin
Chief Administrative Law Judge
Distribution: (Certified Mail)
Gay F. Chase, Esq., Office of the Solicitor, U. S. Department
of Labor, 8th Floor, 230 S. Dearborn Street, Chicago, IL 60604
Mr. Gene L. McGregor, President, Coal Miners Inc., 999 Barrett
Cemetery Road, Equality, IL 62934
/gl
Gay F. Chase, Esq.
Office of the Solicitor
U. S. Department of Labor
8th Floor, 230 S. Dearborn
Street
Chicago, IL 60604