Jericol Mining Incorporated

Plain-English summary

Jericol Mining and the Secretary proposed reducing penalties for two alleged violations at the Darby Mine from $5,700 to $2,298. One matter concerned a disconnected methane-monitor module on a continuous mining machine, and the other concerned loose ribs along a haulage roadway. Judge Paul Merlin held that the parties had described unresolved factual conflicts but had not explained the proposed reductions under the Mine Act's six penalty criteria. He denied the settlement motion and ordered the parties to submit supporting information within 30 days or face further proceedings.

Decision snapshot

• Cited standards: 30 C.F.R. § 75.342(a)(4) and 30 C.F.R. § 75.202(a)
• Outcome: The proposed settlement was denied, and the parties were ordered to provide facts supporting the penalty reductions within 30 days.
• Key point: A large penalty reduction requires facts tied to the statutory penalty criteria, not only competing accounts of the alleged violations.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W., SUITE 600
WASHINGTON, D.C. 20006

                       February 16, 1999

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 94-957
Petitioner : A. C. No. 15-07986-03665
:
v. : Darby Mine
JERICOL MINING INCORPORATED, :
Respondent :

            DECISION DISAPPROVING SETTLEMENT
               ORDER TO SUBMIT INFORMATION

Before: Judge Merlin

 This case is before me upon a petition for assessment of

civil penalties under section 105(d) of the Federal Mine Safety
and Health Act of 1977. The parties have filed a joint motion to
approve settlements for the two violations in this case. A
reduction in the penalties from $5,700 to $2,298 is proposed.

 Citation No. 4249131 was issued as a 104(d)(1) citation for

a violation of 30 C.F.R. ' 75.342(a)(4) because the methane
monitor on a continuous mining machine was not maintained. The
methane monitor would not deenergize the control circuit on the
continuous miner because the monitor module was disconnected from
the control circuit. The continuous miner had been operating for
four hours. The inspector had also detected methane at seals
deeper in the mine from where the miner was cutting coal.
According to the joint motion filed by the parties, the opera-
tor's witnesses would challenge the inspector's assessment of the
presence of methane. The operator would present testimony that a
repairman was working on the monitor at the time the citation was
issued and that parts for the repair were delivered while the
inspector was on the section. In addition, the foreman was
taking regular methane readings with a hand-held methane detector
during the time the monitor was being repaired. Based on the
operator's representations, the parties agree to reduce the
penalty from $4,200 to $1,298 but the citation would remain as
written.

 Order No. 4249190 was issued as a 104(d)(2) order for a

violation of 30 C.F.R. ' 75.202(a) because there were loose ribs
along the haulage roadway. According to the parties, the opera-
tor would present evidence that the ribs were more stable
because they could not be pulled down single-handedly but re-
quired the use of a four foot bar used to pry down slate. Based
on the operator's representations, the parties agree to reduce
the penalty from $1,500 to $1,000 but the citation would remain
as written.

 The motion as presented cannot be approved. The parties are

reminded that the Commission and its judges bear a heavy respon-
sibility in settlement cases pursuant to section 110(k) of the
Act. 30 U.S.C. ' 820(k); See, S. Rep. No. 95-181, 95th Cong.,
1st Sess. 44-45, 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
632-633 (1978). It is the judge's responsibility to determine
the appropriate amount of penalty, in accordance with the six
criteria set forth in section 110(i) of the Act. 30 U.S.C.
' 820(i); Sellersburg Stone Company v. Federal Mine Safety
and Health Review Commission, 736 F.2d 1147 (7th Cir. 1984).
A proposed reduction must be based upon consideration of
these criteria.

 The parties in the instant motion have merely stated their

positions with respect to the violations. The motion sets forth
unresolved conflicts between the parties on the evidence. Under
the provisions of the Act, as set forth above, I cannot approve a
settlement based upon the representation of such conflicts. I
may only approve a settlement justifiable under the six criteria
of section 110(i), supra. Accordingly, the parties must explain
why the proposed penalties should be reduced in light of the six
criteria. For instance, if the facts indicate a lesser degree of
gravity or negligence than first thought, the parties, and most
especially, the Solicitor must say so. This is especially true
where as here the penalty reductions are large but the special
findings remain unchanged.

 In light of the foregoing, it is ORDERED that the motion for

approval of settlement be DENIED.

 It is further ORDERED that within 30 days of the date of

this order the parties submit appropriate information to support
their motion for settlement. Otherwise, this case will be set
for further proceedings.

                               Paul Merlin


                                Chief Administrative Law Judge

Distribution:

Anne T. Knauff, Esq., Office of the Solicitor, U.S. Department of
Labor, 2002 Richard Jones Rd., Suite B-201, Nashville, TN 37215

Mr. Jim Baker, General Superintendent, Jericol Mining Inc.,
General Delivery, Holmes Mill, KY 40843

Douglas White, Esq., Counsel, Trial Litigation, Office of the
Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203

/gl

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