Manalapan Mining Company (ALJ decision, September 11, 1996)

Plain-English summary

The Commission remanded Manalapan Mining’s penalty proceeding after reversing an earlier finding about whether a preshift-examination violation was significant and substantial. On remand, Judge Avram Weisberger found the violation relatively serious and reassessed the penalty for Order No. 4238749 at $5,000, less any amount already paid. The amended portion corrected the description of the Secretary’s evidence and the decision also corrected a clerical error by dismissing docket KENT 93-882, which had contained one vacated citation.

Decision snapshot

• Cited authority: 30 U.S.C. § 820(i)
• Outcome: The penalty for Order No. 4238749 was reassessed at $5,000, less any amount already paid. KENT 93-882 was dismissed as corrected.
• Key point: After a Commission remand, the ALJ reassessed the penalty based on the seriousness of the preshift-examination violation and the operator’s more-than-ordinary negligence.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

September 11, 1996

SECRETARY OF LABOR,
: CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 93-646 Petitioner : A.C. No. 15-05423-03734
v. :
MANALAPAN MINING COMPANY, : Mine No. 1 Respondent :
: Docket No. KENT 93-884
: A.C. No. 15-16733-03546
:
: Mine No. 7

DECISION ON REMAND

Before: Judge Weisberger

On August 30, 1996, the Commission issued a decision in these cases in which it, inter alia, reversed my decision (16 FMSHRC 1669 (August 1994)), that Order No. 4238749 was not S & S, and remanded the matter to me “for penalty reassessment” (Docket No. KENT 93-646, et al., 18 FMSHRC , slip op. at 9, (August 30, 1996)).1

I take cognizance of the Commission recitation of the Secretary’s evidence showing the following: two miners were in the mines for four hours without a preshift examination; the miners’ equipment included torches; the bolter was energized; there was a possibility of the presence of low oxygen; and that the mine roof had a tendency to fall, and the mine had experienced several roof falls. The Commission also noted as follows: “During idle periods, methane can build up, and other unforseen hazards can develop.” (slip op. supra, at 8). Based on these factors, I find that the gravity of the violation was relatively high. I also reiterate my initial finding that

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Pursuant to the Commission’s direction, I hereby correct a clerical oversight with respect to Docket No. KENT 93-882, and indicate that it contained only one Citation i.e., No. 3003352, which was vacated. I thus order that Docket No. KENT 93-882 be dismissed.

Respondent’s conduct was more than ordinary negligence (16 FMSHRC supra, at 1703). I thus find that a penalty of $5,000 is appropriate for the violation cited in this order.

It is ORDERED that, within 30 days of this decision.
Respondent shall pay a total civil penalty of $5,000 for the violation cited in Order No. 4238749, minus any penalty previously paid for this violation.

Avram Weisberger
Administrative Law Judge

Distribution:

Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215 (Certified Mail)

Susan C. Lawson, Esq., Lawson & Lawson, P.S.C., P.O. Box 837, Harlan, KY 40831 (Certified Mail)

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

SECRETARY OF LABOR,
: CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 93-646 Petitioner : A.C. No. 15-05423-03734
v. :
MANALAPAN MINING COMPANY, : Mine No. 1 Respondent :
: Docket No. KENT 93-884
: A.C. No. 15-16733-03546
:
: Mine No. 7

AMENDED DECISION

Before: Judge Weisberger

Due to clerical error, the second paragraph of the decision in these cases isued on September 11, 1996, is amended to read as follows:

I take cognizance of the Commission’s recitation of the Secretary’s evidence showing the following: two miners were in the mine for four hours without a preshift examination; the miners’ equipment included torches; the bolter was energized; there was a possibility of the presence of low oxygen; and that the mine roof had a tendency to fall, and the mine had experienced several roof falls. The Commission also noted as follows: “During idle periods, methane can build up, and other unforseen hazards can develop.” (slip op. supra, at 8). Based on these factors, I find that the gravity of the violation was relatively high. I also reiterate my initial finding that Respondent’s conduct was more than ordinary negligence (16 FMSHRC supra, at 1703). I thus find that a penalty of $5,000 is appropriate for the violation cited in this order.

Avram Weisberger
Administrative Law Judge

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Distribution:

Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215 (Certified Mail)

Susan C. Lawson, Esq., Lawson & Lawson, P.S.C., P.O. Box 837, Harlan, KY 40831 (Certified Mail)

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