Industrial Mining Company (ALJ decision, July 20, 1984)

Plain-English summary

MSHA cited Industrial Mining Company at its Rogers Pit Mine for missing roadway berms, missing safety belts on a loader, and oil and grease buildup on another loader. The Secretary proposed settling each $54 assessment for $40. Judge Paul Merlin accepted the Secretary's descriptions of the operator's size, history, and negligence, but found the gravity explanation inadequate. He said the cited conditions appeared significant and the original $54 assessments were modest. He rejected the settlements and assigned the case to another judge without deciding the citations or setting final penalties.

Decision snapshot

• Cited standards: 30 C.F.R. § 77.1605(k), § 77.1701(i), and § 77.1104.
• Outcome: Three proposed $40 settlements disapproved; the case was reassigned. The citations remained unresolved.
• Key point: A bare description of the cited conditions did not support a finding that the danger was slight.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. INDUSTRIAL MINING
DDATE:
19840720
TTEXT:
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Federal Mine Safety and Health Review Commission Office of Administrative Law Judges

SECRETARY OF LABOR,
CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket No. LAKE 84-69
PETITIONER
A.C. No. 33-00945-03506
v.
Rogers Pit Mine
INDUSTRIAL MINING COMPANY,
RESPONDENT

DISAPPROVAL OF SETTLEMENT
ORDER OF ASSIGNMENT

The Solicitor has filed a motion to approve settlements for the three violations involved in this matter. Each violation was originally assessed at $54 and the Solicitor moves for settlements in the amount of $40 apiece.

The Solicitor's motion advises that the operator is small in size, a history of prior violations is low, and the negligence was moderate. I accept these representations.

I cannot, however, accept the Solicitor's representations regarding gravity. The Solicitor advises "These violations involve the failure to provide 200 feet of berms on a roadway into a pit in violation of 77.1605(k) (Citation No. 02326985); the failure to provide safety belts on a pan loader equipped with a roll over protective structure in violation of 77.1701(i) (Citation No. 02326986), and an accumulation of oil and grease on the motor and transmission of a front-end loader in violation of 77.1104 (Citation No. 02326987). Therefore, there was littl likelihood of any danger to Respondent's miners."

The mere recitation of the facts of each violation does not support the conclusion that there is little likelihood of danger. Moreover, there is no explanation of the Solicitor's proposed conclusions that the probability of occurrences of the event against which the violated standard were directed was unlikely and that the gravity of projected injury would be slight. On the contrary, all of the violations appear to involve a significant degree of gravity, in light of which, the originally assessed penalties of $54 apiece are modest.
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In light of the foregoing, I am unable to approve the recommended settlement.

Thie case is hereby assigned to Assistant Chief Administrative Law Judge Gary Melick. All future communications regarding this case should be addressed to Judge Melick at the following address:

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: 703-756-6261

Paul Merlin
Chief Administrative Law Judge