Secretary of Labor v. Co-op Mining Company (Commission decision, December 10, 1980)

Plain-English summary

MSHA alleged that Co-op Mining failed to submit a respirable dust sample for a miner identified by Social Security number. The parties stipulated that the company had never employed a miner with that number and had submitted the required sample for a miner whose number differed by one digit. An administrative law judge nonetheless approved a proposed penalty settlement. The Commission held that a settlement could not be approved when the stipulated facts showed no violation. It reversed the judge's order, vacated the notice, and dismissed the case.

Decision snapshot

• Cited standard: 30 C.F.R. § 70.250(b).
• Outcome: The settlement approval was reversed, the notice of violation vacated, and the proceeding dismissed; no penalty remained.
• Key point: A civil penalty does not serve the Mine Act's purpose when the parties' own stipulated facts establish that no violation occurred.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 1730 K STREET NW, 6TH FLOOR WASHINGTON, D.C. 20006 December 10, 1980

SECRETARY OR LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v. Docket No. DENV 79-1-P

CO-OP MINING COMPANY

DECISION

On October 16, 1979, the administrative law judge issued a decision and order approving the proposed penalty settlement of the parties with respect to an alleged violation of 30 C.F.R. §70.250(b). 1/ The approval was based upon a stipulation of settlement prepared by the parties. The Secretary alleged that Co-op had failed to submit a respirable dust sample for one miner whom the Secretary identified by his social security number, 528-96-5108.

The parties stipulated that Co-op's records indicated the company never employed a miner with that social security number. They also stipulated that Co-op did employ a miner with the social security number 528-96-5109, and that the required dust sample had been submitted for that miner. These stipulated facts were quoted by the judge in his decision and order, which we directed for review sua sponte.

We hold that under the circumstances in this case, the settlement should not have been approved. The parties' stipulation, shows that the alleged violation did not occur. The legislative history of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 et seq. (Supp. III 1979), states, "The purpose of a civil penalty is to induce those officials responsible for the operation of a mine to comply with the Act and its standards." 2/ To assure this purpose is served section 110(k)

1/ 30 CFR §70.250(b) provides:
One sample of respirable dust shall be taken from the mine atmosphere to which each individual miner assigned to a working section is exposed at least once every 120 days, except those miners already sampled during such 120-day period in sampling cycles conducted under the provisions of §§70.210, 70.220, and 70.230 of this part.
2/ S. Rep. No. 95-181, 95th Cong., 1st Sess. 41 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th., Cong., 2d Sess., Legislative History of the Federal Mine Safety and Health Act of 1977, at 629 (1978).

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of the Mine Act places an affirmative duty upon us to oversee settle- ments. Compliance with the Act and its standards is not fostered by payment of a civil penalty where the stipulated facts establish that no violation occurred. Accordingly, the notice of violation is vacated, the order approving the settlement and ordering payment is reversed, and the proceeding is dismissed.

Richard V. Backley, Chairman
Frank F. Jestrab, Commissioner
A. E. Lawson, Commissioner
Marian Pearlman Nease, Commissioner

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Distribution

James Abrams, Esq.
U.S. Department of Labor
Office of the Solicitor
15019 Federal Office Building
Denver, Colorado 80202

Carl E. Kingston, Esq.
53 West Angelo Avenue
Salt Lake City, Utah 84115

Thomas Mascolino, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Boulevard
Arlington, Virginia 22204

Honorable George A. Koutras
Office of Administrative Law Judges
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041