Secretary of Labor (MSHA) v. U.S. Steel Mining Company, Inc. (ALJ decision, May 28, 1982)

Plain-English summary

MSHA sought a penalty for a safety citation against U.S. Steel Mining Company at Maple Creek No. 1 Mine. At the hearing, the inspector testified about a different citation and could not recall the facts of the one being tried. After a recess to locate his notes, the Secretary conceded that he could offer no supporting evidence and requested more time. Assistant Chief Judge Gary Melick denied a further continuance, citing the advance notice and lack of preparation, and vacated Citation 1050294. He dismissed the case without assessing a penalty.

Decision snapshot

• Cited standard: The decision does not identify the standard for Citation 1050294.
• Outcome: Citation 1050294 vacated and the penalty case dismissed; no penalty assessed.
• Key point: The Secretary could not prove the charged violation when its witness was prepared to address a different citation.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. U.S.STEEL
DDATE:
19820528
TTEXT:
~971

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. PENN 82-29
PETITIONER
A.C. No. 36-00970-03111
v.
Maple Creek No. 1 Mine
U.S. STEEL MINING COMPANY, INC.,
RESPONDENT

DECISION AND ORDER OF DISMISSAL

Appearances: David Bush, Esq., Office of the Solicitor, U.S. Department of Labor, Philadelphia,
Pennsylvania, for Petitioner
Louise Q. Symons, Esq., Pittsburgh, Penn- sylvania, for Respondent

Before: Judge Melick

This case is before me upon a petition for assessment of civil penalty under section 110(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq., the "Act", in which the Secretary has proposed a penalty for an alleged violation on September 17, 1981, of a mandatory safety standard. The Secretary's petition was filed on January 6, 1982, and was answered by the U.S. Steel Mining Company, Inc., (U.S.Steel) on January 18, 1982. Notice was issued on February 24, 1982, scheduling hearings to commence on May 3, 1982. An amended notice was issued on April 6, 1982, rescheduling the hearings for May 4, 1982.

The Secretary's case-in-chief was purportedly to be presented at hearing through the testimony of an MSHA inspector. The inspector proceeded to testify, however, about a citation unrelated to the case at bar (Citation No. 1145239 issued March 31, 1982). After discovering his error, the inspector conceded that he was unable to recall the facts relating to the citation at issue in this case. Counsel for the Secretary explained that the two citations charged violations of the same standard and the factual allegations in each were similar. He further proferred that, inexplicably, the citations became mixed up during prehearing preparations.

Under the circumstances, I granted a recess to permit the inspector to contact his office to locate his notes for the purpose of refreshing his recollection about the citation at issue. Although it was made clear that at least an ~972 hour's recess would be granted for this purpose, it appears that no effort was made to search for the notes and no explanation given except that "it would be impossible [to locate the notes] unless [the inspector himself] was present." Counsel for the Secretary thereupon conceded that he was unable to present any evidence to support his case and requested a further continuance for an unspecified time.

In deciding that no further continuance was warranted, I considered: (1) that more than 60 days notice of hearing was provided the Secretary, giving him ample opportunity to prepare his case, (2) that the Secretary was particularly negligent in the preparation of this case, since the citation about which the inspector was prepared to testify had not even been issued at the time the hearing was scheduled and had been issued only shortly before the actual hearing, (3) that once his error was known, the Secretary showed a lack of good faith in failing to conduct a search for the inspector's notes (to refresh the inspector's recollection of the citation at issue) during a continuance granted specifically for that purpose, (4) that significant expenditures in time and money had been incurred as a result of the scheduled hearing and that additional such expenditures would be incurred by any further continuance of the proceedings, (5) that there were no assurances that even after a further continuance, the Secretary would be any better prepared to present his case, and (6) that the operator was prepared for hearing with two staff attorneys and six witnesses present.

The bench decision denying the Secretary's request for an additional continuance and dismissing the case for lack of evidence is affirmed at this time. Accordingly, Citation No. 1050294 is VACATED and this case is DISMISSED.

Gary Melick
Assistant Chief Administrative Law Judge