Secretary of Labor (MSHA) v. Mich Coal Company (ALJ decision, July 15, 1983)

Plain-English summary

MSHA cited Mich Coal for failing to submit a valid respirable dust sample, or a valid reason for not sampling, for a designated work position during June to July 1982. The Secretary sought dismissal based on MSHA's $20 single penalty regulation. Chief Judge Paul Merlin denied the motion because the Secretary acknowledged having no evidence on gravity or negligence, and the record did not address the other statutory penalty factors. He held that MSHA's penalty rule and nonsignificant and substantial designation did not bind the Commission's independent assessment. He required adequate information within 30 days or a hearing.

Decision snapshot

• Governing provisions: 30 C.F.R. § 100.4, MSHA single penalty assessment; 30 U.S.C. § 820(i), statutory penalty factors. The cited dust sampling standard is not numbered in this order.
• Outcome: Motion to dismiss denied pending information or a hearing; no final penalty entered in this order.
• Key point: A request to dismiss a penalty petition still required an adequate record for Commission review.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. MICH COAL
DDATE:
19830715
TTEXT:

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Federal Mine Safety and Health Review Commission Office of Administrative Law Judges

SECRETARY OF LABOR,
CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket No. CENT 83-4
PETITIONER
A.C. No. 13-01855-03501

v. No. 6 Mine

MICH COAL COMPANY,
RESPONDENT

DENIAL OF MOTION TO DISMISS

ORDER TO SUBMIT INFORMATION

In accordance with what apparently now is becoming standard practice the Solicitor has filed a motion to dismiss the petition for assessment of a civil penalty for the one violation involved in this matter predicated solely upon section 100.4 of the regulations of the Mine Safety and Health Administration, 30 C.F.R. 100.4. According to the Solicitor this regulation provides for the assessment of a $20 single penalty for a violation which is not reasonably likely to result in reasonably serious injury or illness. The Solicitor has orally advised that his records disclose no evidence on gravity or negligence. The citation was issued for a failure to submit a valid respirable dust sample or giving a valid reason for not sampling the designated work position for the bimonthly period June-July 1982.

I am unable to grant the Solicitor's motion on the basis of the present record. The Act makes very clear that penalty proceedings before the Commission are de novo. The Commission itself recently recognized that it is not bound by penalty assessment regulations adopted by the Secretary but rather that in a proceeding before the Commission the amount of the penalty to be assessed is a de novo determination based upon the six statutory criteria specified in section 110(i) of the Act and the information relevant thereto developed in the course of the adjudicative proceeding. Sellersburg Stone Company, 5 FMSHRC 287 (March 1983). Indeed, if this were not so, the Commission would be nothing but a rubber stamp for the Secretary. This case

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demonstrates the point. Not only would granting the motion to dismiss make the Commission a rubber stamp for MSHA but it would allow the Solicitor to be one too because the Solicitor has freely admitted that he does not have any information regarding negligence and gravity. I cannot determine that a nominal penalty of $20 is appropriate when I am given no information regarding negligence and gravity or any of the other statutory criteria.

The fact that MSHA may have determined that this violation is not "significant and substantial" as that term presently is defined by the Commission, is not determinative or even relevant in these proceedings. I agree with Administrative Law Judge Broderick that whether a cited violation is checked as significant and substantial is per se irrelevant to the determination of the appropriate penalty to be assessed. United States Steel Mining Co., Inc., 5 FMSHRC 934 (May 1983), PDR granted June 22, 1983.

Regardless of the Secretary's regulations, once this Commission's jurisdiction attaches we have our own statutory responsibilities to fulfill and discharge. This can only be done on the basis of an adequate record.

ORDER

In light of the foregoing, it is Ordered that the Solicitor's motion for dismissal be Denied.

It is further Ordered that within 30 days from the date of this order the Solicitor file information adequate for me to determine whether the proposed penalty is justified and dismissal warranted. Otherwise, this case will be assigned and set down for hearing on the merits.

Paul Merlin
Chief Administrative Law Judge