Secretary of Labor (MSHA) v. Co-op Mining Company (Commission decision, April 21, 1980)

Plain-English summary

An ALJ found that Co-op Mining Company committed 14 of 15 alleged violations and assessed $2,898 in penalties. Co-op challenged one violation finding under 30 C.F.R. § 75.603 and seven penalty amounts. The Commission found evidence supporting the challenged violation. It also rejected Co-op's argument that the judge had to use MESA's initial assessment formula when setting penalties. After reviewing the judge's consideration of the statutory penalty factors, the Commission affirmed his decision and the $2,898 total.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.603 for the violation challenged on appeal.
• Outcome: Challenged violation and penalties affirmed; total civil penalties of $2,898.
• Key point: MESA's initial penalty calculation formula did not control the judge's independent penalty assessment.

Full text (FMSHRC public release)

CCASE:
MSHA V. CO-OP MINING
DDATE:
19800421
TTEXT:
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION WASHINGTON, DC April 21, 1980 SECRETARY OF LABOR MINE SAFETY AND HEALTH
ADMINISTRATION(MSHA)
DOCKET NO. DENV 75-207-P
DENV 76-6-P v.
IBMA 77-30
CO-OP MINING COMPANY
DECISION
This penalty proceeding arises under the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. •801 et seq. (1976)(amended 1977), and involves 15 alleged violations. On March 31, 1977, after a hearing, the administrative law Judge issued his decision findings that 14 of the alleged violations occurred and assessing penalties in the total amount of $2,898. Co-op Mining Company appealed one finding of violation and seven of the penalty assessments. 1/ Co-Op contends the*t the Mining Enforcement and Safety Administration (MESA) did not sustain its burden of proving a violation of 30 CFR •75.603, which was cited in Notice No. 1 TLC. We have thoroughly reviewed the record, and we conclude that the evidence supports the judge's finding of violation.
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1/ On March 8, 1978, this case was pending on aPpeal before the Secretary of Interior's Board of Mine operations Appeals under the 1969 Act. This appeal is before the Commission for disposition under section 301 of the Federal Mine Safety and Health Amendments Act of 1977, 30 U.S.C.A. •961 (1978).
~785
As to the remaining notices under appeal, Co-Op concedes that the evidence supports a finding of violation in each instance. However, Co-Op argues that the assessment of penalty made by the judge for each violation was erroneous and excessive. Co-Op concedes that the judge may determine de novo the amount of the civil penalty, but argues that the judge is bound by the formulas provided in 30 CFR •100 in assessing any civil penalty. We reject this argument. 30 CFR •100 was applicable only to MESA's Office of Assessments in initially proposing penalties. The authority of an administrative law judge to assess penalties de novo in a penalty proceeding under the 1969 Act

was not governed by the method of computation utilized by MESA's Office of Assessments. Finally, Co-Op presents no persuasive arguments why the penalties assessed by the judge are excessive. The evidence emphasized by Co-Op in support of its argument was before the judge for his consideration. After a complete review of the record, we find that the judge gave full and fair consideration to all relevant testimony and other evidence of record in considering the six statutory criteria required before assessing penalties. The record supports his determinations and his penalty assessments should not be disturbed. 2/ Accordingly, the judge's decision is affirmed.
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2/ The Commission has declined to disturb penalty amounts assessed by a judge where the record reflects his full consideration of the six statutory criteria. See, e.g., Peabody Coal Co., 1 FMSHRC 1494 (1979); Pittsburgh Coal Co., 1 FMSHRC 1468 (1979); U.S. Steel Corp., 1 FMSHRC 1306 (1979); Kaiser Steel Corp., 1 FMSHRC 984 (1979); Shamrock Coal Co., 1 FMSHRC 799 (1979); Rushton Mining Co., 1 FMSHRC 794 (1979).
~786
Distribution
Carl E. Kingston, Esq.
Attorney for Co-Op Mining Co.
53 West Angelo Avenue
Salt Lake City, Utah 84115
Thomas A. Mascolino, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Va. 22203
Administrative Law Judge Harvey C. Sweitzer U.S. Department of Interior Office of Hearings & Appeals 6432 Federal Building Salt Lake City, Utah 84138