Secretary of Labor (MSHA) v. Watson & Cassady Coal Company (ALJ decision, August 7, 1980)

Plain-English summary

Watson & Cassady Coal Company faced proposed penalties for two citations involving a battery powered scoop and the mine canopy requirement. The Secretary withdrew the proposed penalty for Citation No. 75015 after concluding that the scoop traveled through a passage less than 42 inches high, where a canopy was not required. The company agreed to pay $25 instead of the proposed $52 for Citation No. 75014. Judge Richard C. Steffey approved the settlement because the company's small size and precarious finances justified the reduction, despite the remaining violation's moderate seriousness and relatively high negligence. He gave the company 60 days to pay.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.1710.
• Outcome: Settlement approved; one proposed penalty withdrawn and a $25 penalty ordered for the other citation.
• Key point: The judge weighed the operator's financial condition in approving the reduced penalty.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, 10TH FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

7 AUG 1980

SECRETARY OF LABOR,
: Civil Penalty Proceeding
MINE SAFETY AND HEALTH
:
ADMINISTRATION (MSHA),
: Docket No. KENT 79-110
Petitioner : Assessment Control
: No. 15-10141-03002
v. :
: No. 2 Mine
WATSON & CASSADY COAL COMPANY,
:
Respondent :

DECISION APPROVING SETTLEMENT

Appearances: Stephen P. Kramer, Esq., Office of the Solicitor, U.S. Depart- ment of Labor, for Petitioner;
Betty Watson, Betsy Lane, Kentucky, for Respondent.

Before: Administrative Law Judge Steffey

When the hearing in the above-entitled proceeding was convened in Pikeville, Kentucky, on June 13, 1980, counsel for the Secretary of Labor requested that I approve a settlement which had been agreed upon by the parties during a conference which had been held by the parties just prior to the convening of the hearing.

Under the settlement agreement, the Secretary would withdraw the Pro- posal for Assessment of Civil Penalty insofar as it seeks a civil penalty for a violation of section 75.1710 alleged in Citation No. 75015 and respondent would pay a civil penalty of $25, instead of the penalty of $52 proposed by the Assessment Office, with respect to the only other viola- tion alleged by the proposal for assessment of civil penalty.

The reason given for withdrawing the proposal with respect to the viola- tion of section 75.1710 alleged in Citation No. 75015 is that the violation was cited in connection with the failure of a battery-powered scoop to have installed on it a cab or canopy as required by section 75.1710. A canopy, however, is not required if the height of the mine is 42 inches or less. The inspector indicated that the scoop did have to travel a road which was less than 42 inches in height for the purpose of obtaining recharged batteries. In such circumstances, counsel for the Secretary concluded that no violation of section 75.1710 had occurred with respect to the operator's failure to install a canopy on the battery-powered scoop.

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The reason that counsel for the Secretary agreed to reduce the civil penalty for the violation of section 75.1710 alleged in Citation No. 75014 is that respondent is presently in a difficult financial condition and payment of penalties will at this time have an adverse effect on respondent's ability to continue in business. Respondent leases its coal reserves from another company and is required to sell all coal produced at a price of between $12 and $15 per ton. Respondent has spent a long time in driving through rock in an effort to reach desirable coal reserves. The bank has been extending credit on the basis of respondent's assurances that coal will soon be available in a profitable amount, but respondent has exhausted the extent to which the bank will extend further credit.

Up to the present time, respondent has not produced more than 2,000 tons of coal in any month and employs only eight or nine miners, including the owner.

Although the violation of section 75.1710 was moderately serious and was associated with a rather high degree of negligence, I find that respon- dent's small size and its precarious financial condition justify approval of the settlement under which respondent will pay a penalty of $25. Respon- dent has also asked that it be given a period of 60 days within which to pay the penalty.

WHEREFORE, it is ordered:

(A) The request that the settlement agreement be approved is granted and the settlement agreement reached by the parties is approved.

(B). The request by the Secretary's counsel that he be permitted to with- draw the Proposal' for Assessment of Civil Penalty in Docket No. KENT 79-110, to the extent that it seeks assessment of a civil penalty for the violation of section 75.1710 alleged in Citation No. 75015 dated October 6, 1978, is granted and the Proposal is deemed to have been withdrawn to that extent.

(C) Pursuant to the parties' settlement agreement, Respondent, within 60 days from the date of this decision, shall pay a civil penalty of $25.00 with respect to the violation of section 75.1710 alleged in Citation No. 75014 dated October 5, 1978.

Richard C. Steffey
Administrative Law Judge
(Phone: 703-756-6225)

Distribution:

Stephen P. Kramer, Trial Attorney, Office of the Solicitor, U.S. Depart- ment of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail)

Watson & Cassady Coal Company, Attention: Mrs. Betty Watson, P.O. Box 219, Betsy Lane, KY 41605 (Certified Mail)

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