Secretary of Labor (MSHA) v. West Virginia Rebel Coal Company, Inc. (ALJ decision, August 21, 1984)

Plain-English summary

MSHA cited West Virginia Rebel Coal Company after finding inoperative service and parking brakes on a scraper at its No. 1 Surface Mine. The Secretary proposed a $20 settlement, the same amount initially assessed, while describing the violation's gravity and negligence as moderate. Chief Judge Paul Merlin declined to approve the settlement because he considered $20 inconsistent with those descriptions and thought the gravity might be greater. He assigned the case to Judge James A. Broderick for further proceedings. This order does not decide the citation or assess a final penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 77.1605(b).
• Outcome: Proposed $20 settlement disapproved; case reassigned for further proceedings.
• Key point: The judge required further review because the proposed penalty did not match the government's own gravity assessment.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. REBEL COAL
DDATE:
19840821
TTEXT:
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Federal Mine Safety and Health Review Commission Office of Administrative Law Judge

SECRETARY OF LABOR,
CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket No. KENT 83-209
PETITIONER
A.C. No. 15-06365-03509
v.
No. 1 Surface Mine
WEST VIRGINIA REBEL COAL
COMPANY, INC.,
RESPONDENT

DISAPPROVAL OF SETTLEMENT
ORDER OF ASSIGNMENT

On March 27, 1984, the Solicitor filed his Response to the Order to Submit Information issued in the above-captioned proceeding. At issue is one violation, the proposed settlement of which is $20, the originally assessed amount.

Citation No. 2053339 was issued for a violation of 30 C.F.R.
77.1605(b), because the foot and parking brakes on a scrape were inoperative. The Solicitor asserts in his motion the the Caterpiller 637 Scraper was operating on the outside edge of the coal pit at the time that this citation was issued and that there were no other miners on the ground near this machine. The Solicitor represents that although the machine was without service or footbrakes, it was operating on a very slight incline and was capable of being stopped by the use of its scraper blade or bowl. He also argues that the machine was not working on rocky ground and was therefore capable of exerting downward pressure with the blade to enable it to stop.

In his original motion, the Solicitor represented that gravity and negligence were moderate. I have consistently held that a $20 penalty denotes lack of gravity. I am unable to approve a $20 settlement of a violation which the Solicitor himself alleges is of moderate negligence and gravity. Moreover, it may be that the gravity was even more than moderate. Therefore, this case is hereby assigned to Judge James A. Broderick.

All future communications regarding this case should be addressed to Judge Broderick at the following address:
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Federal Mine Safety and Health
Review Commission
Office of Administrative Law Judges
Two Skyline Place, Suite 1000
5203 Leesburg Pike
Falls Church, VA 22041
Telephone No. 703-756-6200

Paul Merlin
Chief Administrative Law Judge