.
BASIN RESOURCES, INC.
September 2, 1997
WEST 96-272
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
September 2, 1997
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 96-272
Petitioner : A.C. No. 05-04461-03528
:
v. :
: New Elk Preparation Plant
BASIN RESOURCES, INC., :
Respondent :
DECISION
Appearances: Edward Falkowski, Esq., Office of the Solicitor,
U. S. Department of Labor, Denver, Colorado, for
Petitioner;
Andrew Volin, Esq., Sherman & Howard, Denver,
Colorado, for Respondent.
Before: Judge Manning
This case is before me on a petition for assessment
of penalty filed by the Secretary of Labor, acting
through the Mine Safety and Health Administration
("MSHA"), against Basin Resources, Inc. ("Basin
Resources"), pursuant to sections 105 and 110 of
the Federal Mine Safety and Health Act of 1977, 30
U.S.C. � 815 and 820. The petition alleges two
violations of the Secretary's safety regulations.
The hearing in this and nine other Basin Resources
cases was held in Denver, Colorado, on August 5 -
6, 1997.
The Secretary filed a motion to amend the petition for
penalty to add Entech, Inc., and Montana Power Company as
respondents in these and other Basin Resources cases. For
the reasons set forth in Basin Resources, Inc., 19 FMSHRC
699, 699-704 (April 1997), the Secretary's motion is denied.
At the hearing, Basin Resources stated that it was not
contesting the fact of violation in these citations or the
other determinations made by the inspector in the citations.
(Tr. 579-80). It only contests the amount of the penalty
proposed by the Secretary for each of the two citations.
It contends that the Secretary's penalties are too
high taking into consideration the civil penalty
criteria set forth in section 110(i) of the Mine
Act.
I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
Citation No. 4057358, issued on December 29, 1995, alleges a
violation of 30 C.F.R. � 77.502. The citation states that a power
cord was damaged, but that an injury was unlikely. The inspector
determined that the violation was not of a significant and
substantial nature ("S&S") and that Basin Resources' negligence
was moderate. The Secretary proposes a penalty of $288.00 for
the violation.
Citation No. 4057359, issued on December 29, 1995, alleges
a violation of 30 C.F.R. � 77.205(b). The citation states that
safe access was not provided for a 480-volt control box because
mud and refuse was allowed to accumulate around the box, but that
an injury was unlikely. The inspector determined that the violation
was not S&S and that Basin Resources' negligence was moderate.
The Secretary proposes a penalty of $288.00 for the violation.
Section 110(i) of the Mine Act sets out six criteria to be
considered in determining appropriate civil penalties. I find
that about 102 citations were issued at the New Elk Preparation
Plant in the 24 months preceding December 29, 1995. (Exs. P-1
& P-2). I also find that Basin Resources was a medium to large
mine operator. (Ex. J-1). Basin Resources shut down its Golden
Eagle Mine and New Elk Preparation Plant at the end of December
1995. The mine and preparation plant are no longer producing
coal. Basin Resources has been unable to sell the Golden Eagle
Mine. Its unaudited balance sheet for April 30, 1996, shows
that shareholders' equity was minus about 23 million dollars and
its income statement for the year ending April 30, 1995, shows a
net loss of $325,000. 18 FMSHRC 1846, 1847 (October 1996). I
have taken Basin Resources' financial condition into consideration
and find that the civil penalty assessed in this decision would
not have affected its ability to continue in business. Basin
Resources demonstrated good faith in abating all of the violations.
(Ex. J-1). Both violations were serious. Based on the penalty
criteria, I find that a penalty of $175.00 for each citation is
appropriate.
II. ORDER
The Secretary's motion to amend the petition for assessment
of penalty is DENIED, the citations listed above are hereby AFFIRMED,
and Basin Resources, Inc., is ORDERED TO PAY the Secretary of Labor
the sum of $350.00 within 40 days of the date of this decision.
Richard W. Manning
Administrative Law Judge
Distribution:
Edward Falkowski, Esq., Office of the Solicitor, U.S. Department
of Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
(Certified Mail)
Andrew Volin, Esq., SHERMAN & HOWARD, L.L.C., 633 17th Street,
Suite 3000, Denver, CO 80202 (Certified Mail)