Moniteau County Commission (ALJ decision, April 20, 1989)

Plain-English summary

Moniteau County Commission was cited for failing to file a quarterly mine employment report for its maintenance shop. After a hearing, MSHA determined that the operation was a borrow pit outside Mine Act coverage in the circumstances presented. Judge Michael A. Lasher, Jr. granted MSHA's motion to dismiss, vacated the citation, and dismissed the proceeding. No civil penalty was assessed.

Decision snapshot

• Cited standard: 30 C.F.R. § 50.30(a)
• Outcome: Citation No. 3064674 was vacated and the proceeding was dismissed.
• Key point: The case ended after MSHA concluded the borrow pit was not covered by the Mine Act under the facts presented.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. MONITEAU COUNTY COMMISSION DDATE: 19890420 TTEXT:

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.) Office of Administrative Law Judges

SECRETARY OF LABOR,
CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket No. CENT 88-148-M
PETITIONER
A.C. No. 23-01971-05502

v. Maintenance Shop

MONITEAU COUNTY COMMISSION,
RESPONDENT

DECISION

Appearances: John J. Matthew, Esq., Office of the Solicitor, U.S. Department of Labor, Denver, Colorado, for Petitioner;
John T. Kay, Esq., Prosecuting Attorney, Moniteau County, California, Missouri, for Respondent.

Before: Judge Lasher

This proceeding was initiated by the filing of a proposal for penalty by Petitioner MSHA pursuant to Section 110 of the Federal Mine Safety and Health Amendments Act of 1977, 30 U.S.C. Section 801 et seq. (1977)(herein the Act). Petitioner sought assessment of a penalty of $20.00 for an alleged violation of 30 C.F.R. Section 50.30 described in Citation No. 3064674 issued on March 31, 1988 by MSHA Inspector Dulces N. Mesa as follows:

"The operator has failed to file with the appropriate MSHA office a quarterly mine employment report (Form 7000-2), after having been advised not to by their legal representative."

30 C.F.R. 50.30(a) provides:

(a) Each operator of a mine in which an individual worked during any day of a calendar quarter shall complete a MSHA Form 7000-2 in accordance with the instructions and criteria in 50.30-1 and submit the original to the MSHA Health and Safety Analysis Center, P.O. Box 25367, Denver Federal Center, Denver, Colo.
80225, within 15 days after the end of each calendar quarter. These forms may be obtained from MSHA Metal and Nonmetallic Mine Health and Safety Subdistrict Offices and from MSHA Coal

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Mine Health and Safety Subdistrict Offices. Each operator shall retain an operator's copy at the mine office nearest the mine for 5 years after the submission date.

The matter came on for hearing on February 16, 1989 in Sedalia, Missouri. Thereafter, by motion to dismiss dated April 14, 1989, the Secretary indicated its determination that Respondent Moniteau County Commission was operating a "borrow pit" rather than a mine covered under the Mine Act, that borrow pits are covered by OSHA except in certain circumstances not present here, that the Citation in question should be vacated, and these proceedings dismissed.

The motion to dismiss is for all intents and purposes a withdrawal by MSHA of its prosecution of this matter. Pursuant to Commission Rule 11 (29 C.F.R. 2700.11) a party may withdraw a pleading at any stage of a proceeding with the approval of the Commission or the Judge. In view thereof, and good cause appearing for the withdrawal of MSHA's proposal herein, the motion to dismiss is GRANTED, Citation No. 3064674 is VACATED, and this proceeding is DISMISSED.

Michael A. Lasher, Jr.
Administrative Law Judge