.
THUNDER BASIN COAL COMPANY
September 29, 1997
WEST 94-370
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W. 6TH FLOOR
WASHINGTON D. C. 20006-3868
September 29, 1997
SECRETARY OF LABOR : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 94-370
Petitioner : A . C. No. 48-00977-03525
:
v. :
: Black Thunder Mine
THUNDER BASIN COAL COMPANY, :
Respondent :
DECISION ON REMAND
Before: Judge Merlin
On September 5, 1997, the Commission remanded this case for
a reassessment of civil penalties. The parties have waived the
filing of briefs.
A citation dated February 22, 1994, issued under section 104
(a) of the Mine Act charged the operator with a violation of 30
C.F.R. � 40.4 for refusing to post a form designating two
officials of the United Mine Workers who were not employees of
the operator, as miner representatives under section 103(f) of
the Mine Act.[1] The abatement time allowed by the citation
was 15 minutes, and an order under section 104(b) of the Act for
failure to abate was issued on the same day as the citation.
However, MSHA did not begin to assess a daily penalty until March
27, 1994, two days after a Commission judge had denied the
operator's request for temporary relief. The operator sought
temporary relief from the Commission and did not abate the
violation until 13 days later when the Commission denied relief.
In its decision the Commission found that the judge's
failure to assess a penalty for the initial violation set forth
in the citation amounted to legal error that necessitated a
remand. Section 110(i) of the Act, 30 U.S.C. � 820(i),
identifies six factors which must be taken into account in
determining the appropriate amount of penalty. Four of these
factors are the subject of stipulations which have been accepted
by the Commission. Accordingly, I find that the operator is
large in size, imposition of a penalty will not affect its
ability to continue in business and the violation was non
serious. I also find that the history of violations for the two
years preceding issuance of the citation consisted of 23
violations and no violation of the cited regulation. The
assessment sheet for the citation shows that the operator had 32
inspection days in the two year period and less than one
violation per inspection. Considering the operator's large size
this is a good history.
The record shows that the citation was given after the
operator had requested issuance of a citation so that its refusal
to accept non employees as miner representatives could be adjudi-
cated and resolved. As the Solicitor's brief to the Commission
acknowledges, in issuing the citation the Mine Safety and Health
Administration was cooperating with the operator in attempting to
move the matter through the administrative and judicial review
process as expeditiously as possible. Clearly, the operator
knowingly and intentionally violated the Act by refusing to post
the names. An intentional violation usually connotes high
negligence. However, in this instance the citation was issued as
a result of an agreement between the parties to obtain a prompt
ruling on the issue presented. Under these limited circumstances
the operator's degree of negligence is mitigated and I find
negligence was moderate with respect to the issuance of the
citation.
The remaining factor is whether or not the operator
demonstrated good faith in attempting to achieve rapid compliance
after notification of the violation. Abatement required only the
posting of the designation. The 15 minutes allowed was
sufficient to post the names. I find there was no good faith
abatement. The circumstances relating to the failure to abate
are set forth more below in the analysis of the withdrawal order.
Turning to the withdrawal order, I again accept the
stipulations of the parties and in accordance therewith find that
the operator was large in size, imposition of a penalty will not
affect its ability to continue in business, the violation was non
serious and history of previous violations was good.
Evaluation of negligence with respect to the order involves
circumstances very different from those attendant upon issuance
of the citation. There is no dispute that the operator could
have abated within the time allowed. However, it intentionally
chose not to do so and instead sought temporary relief. The
operator knew from the outset that MSHA did not agree to its
refusal to abate. The MSHA district manager wrote the operator
that he intended to recommend a daily penalty unless abatement
occurred by March 1, 1994. However, the operator pursued its
application for temporary relief which was denied on March 25,
1994, by a Commission judge. Two days after the judge's denial
of relief, the MSHA Director of Assessments wrote the operator
that a penalty of $2,000 per day was being imposed until the
violation was abated. Nevertheless, the operator appealed the
denial of temporary relief to the Commission. Only when the
Commission denied relief thirteen days later did the operator
abate. Accordingly, the operator's failure to abate was
intentional and its course of conduct was taken with the full
knowledge that MSHA did not approve.
There is no question that the operator had the right to seek
temporary relief afforded by the statute and regulations.
30 U.S.C. � 815(b)(2), 29 C.F.R. � 2700.46. However, the
existence of that right does not mean it can be exercised
without consequences, particularly when the course of action
selected by the operator poses a conflict with the
fundamental statutory scheme. The Mine Act vests
enforcement in the Secretary. Thunder Basin Coal Co. v.
Reich, 510 U.S. 200 (1994); Mechanicsville Concrete, Inc.,
18 FMSHRC 877, 879 (June 1996). Under Sections 104(b) and
110(b), 30 U.S.C. �� 814(b), 820(b), the Secretary is given
the authority to set times for abatement, determine whether
there has been abatement, issue withdrawal orders and
propose civil penalties to obtain abatement. The use of
these powers, which are critical to proper enforcement,
cannot be compromised or inhibited by an operator's decision
to pursue adjudicative or judicial avenues of relief.
Otherwise, operators, and not the Secretary, will decide the
times and terms of enforcement.
In light of the foregoing, I conclude that the operator's
intentional and knowing refusal to abate constituted high
negligence. Eastern Associated Coal Corp., 13 FMSHRC 178,
187 (February 1991); Mettiki Coal Corporation, 13 FMSHRC
760, 770 (May 1991); See Also, Tanglewood Energy, Inc., 18
FMSHRC 1315, 1319-1320 (August 1996). The same consider-
ations compel the conclusion that the operator intentionally
and knowingly failed to abate the violation in a timely
manner.
I take careful note that the Secretary's proposed penalty
is $2,000 per day. The Secretary's regulations state that
the formula used to determine proposed penalty amounts is
based upon the six factors of section 110(i). 30 C.F.R. �
100.3. Special assessments also take into account the six
factors. 30 C.F.R. � 100.5. However, the Secretary is not
required to explain how she arrives at a proposed penalty.
Therefore in this case there is no way to know how the
Secretary viewed and weighed each of the six criteria. 30
U.S.C. � 820(i); See Also, Conf. Rep. No. 461, 95th Cong.,
1st Sess. 58, reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong. 2nd Sess.,
Legislative History of the Federal Mine Safety and Health
Act of 1977, at 1336 (1978); Redland Genstar Incorporated,
19 FMSHRC 442, 446 (February 1997).
In any event, it is well established that penalty proceedings
before the Commission and its judges are de novo and that the
Secretary's proposed penalties are not binding on the Commis-
sion and its judges. Sellersburg Stone Company, 5 FMSHRC
287, 290-29 (March 1983),
aff'd, 736 F.2d 1147 (7th Cir. 1984); U.S. Steel Mining Co.,
6 FMSHRC 1148, 1150 (May 1984); Missouri Rock, Inc., 11
FMSHRC 136, 140 (February 1989); Doss Fork Coal Company,
18 FMSHRC 122, 130 (February 1996); Wallace Brothers Inc., 18
FMSHRC 481, 483-484
(April 1996); Mechanicsville Concrete, Inc., 18 FMSHRC 877,
881 (June 1996). As the Commission stated in its remand
order in this case, Commission judges are accorded broad
discretion in assessing penalties under the Act and these
assessments must reflect proper consideration of the six
criteria set forth in section 110 (i).
As set forth herein, I have considered and made findings
with respect to the six criteria. It is my reasoned
judgment that a penalty of $350 is an appropriate penalty
for the underlying violation. I believe this amount is
consistent with lack of gravity, moderate negligence and
good history. In addition, in reaching this amount I have
taken into account the operator's large size and ability to
continue in business. Finally, I am cognizant of the
operator's failure to timely abate, a factor that also is
central to reaching an appropriate penalty amount for the
order.
Upon a review of the six criteria it is my reasoned judgment
that a daily penalty of $1,000 per day is suitable for the
violation cited in the 104(b) order. In my view this amount
recognizes the non serious nature of the violation and the
operator's good prior history. However, it also is premised
on the finding of high negligence. I further believe this
fine is consistent with the operator's large size and
ability to continue in business. Finally, the failure to
timely abate after issuance of the order has been weighed in
the balance. The substantial penalty being assessed is
sufficient to have the desired deterrent effect.
ORDER
It is ORDERED that a penalty of $350 be assessed for
Citation No. 3589040.
It is further ORDERED that a penalty of $1,000 a day be
assessed for the operator's failure to comply with Order No.
3589101 for a total penalty of $13,000.
It is further ORDERED that the operator pay these penalties
within 30 days of the date of this decision.
Paul Merlin
Chief Administrative Law Judge
Distribution:(Certified Mail)
Colleen A. Geraghty, Esq., Office of the Solicitor, U. S.
Department of Labor, 4015 Wilson Boulevard, Suite 400, Arlington,
VA 22203
Margaret A. Miller, Esq., Office of the Solicitor, U. S.
Department of Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-
5716
Thomas C. Means, Esq., Crowell & Moring, 1001 Pennsylvania
Avenue, N.W., Washington, DC 20004
Thomas F. Linn, Esq., Atlantic Richfield Company, 555 17th
Street, 20th Floor, Denver, Co 80202
/gl
**FOOTNOTES**
[1]:The operator's argument that non employees cannot serve
as a miner representatives was eventually rejected by the Court
of Appeals for the Tenth Circuit. Thunder Basin v. Fed. Mine
Saf. and Health Rev. Com.,56 F.3d 1275 (1995).