Secretary of Labor (MSHA) v. Mishbucha Enterprises, Ltd. (ALJ decision, July 15, 1983)

Plain-English summary

MSHA cited Mishbucha Enterprises for two failures to take required valid dust samples at its Skidmore Slope mine. The Secretary proposed a $40 settlement, or $20 for each violation, under MSHA's single penalty rule. Chief Judge Paul Merlin denied approval because the record gave no reasons for the inspector's conclusion that the hazardous event was unlikely and no information about negligence or other statutory penalty factors. He held that MSHA's rule and nonsignificant and substantial designations did not control the Commission's independent assessment. He ordered the Secretary to provide adequate information within 30 days or proceed to a hearing.

Decision snapshot

• Governing provisions: 30 C.F.R. § 100.4, MSHA single penalty assessment; 30 U.S.C. § 820(i), statutory penalty factors. The cited dust sampling standard is not numbered in this order.
• Outcome: Both proposed $20 settlements denied pending information or a hearing; no final penalties entered.
• Key point: A checked citation box without supporting reasons did not justify nominal penalties.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. MISHBUCHA
DDATE:
19830715
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. PENN 83-80
PETITIONER
A.C. No. 36-04702-03501

v. Skidmore Slope

MISHBUCHA ENTERPRISES, LTD.,
RESPONDENT

DENIAL OF SETTLEMENT

ORDER TO SUBMIT INFORMATION

In accordance with what apparently now is becoming standard practice, the Solicitor has filed a motion for settlement in the amount of $40, $20 apiece for the two violations involved in this matter. This motion is predicated solely upon section 100.4 of the regulations of the Mine Safety and Health Administration, 30 C.F.R. 100.4 which provides for the assessment of a $20 single penalty for a violation MSHA believes is not reasonably likely to result in a reasonably serious injury or illness. The violations involve a failure to take a required valid dust sample.

I am unable to approve the motion for settlement on the basis of the present record. In my opinion $20 is a nominal penalty which indicates a lack of gravity. I note that on the citation form the inspector checked the box indicating that the occurrence of the event against which the mandatory standard is directed was unlikely. However, I am unwilling to accept a check in a box on a form without knowing any of the reasons for the inspector's conclusion. Moreover, I have been told nothing about negligence or any of the other statutory factors which would enable me to make an informed judgement as to proper penalty amounts.

The MSHA regulation in question is not binding upon the Commission. Indeed, it is not even relevant. The Act makes very clear that penalty proceedings before the Commission are de novo. The Commission itself recently recognized that it is not bound by penalty assessment regulations adopted by the Secretary but rather that in a proceeding before the

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Commission the amount of the penalty to be assessed is a de novo determination based upon the six statutory criteria specified in section 110(i) of the Act and the information relevant thereto developed in the course of the adjudicative proceeding. Sellersburg Stone Company, 5 FMSHRC 287 (March 1983). Indeed, if this were not so, the Commission would be nothing but a rubber stamp for the Secretary.

The fact that MSHA may have determined that these violations are not "significant and substantial" as that term presently is defined by the Commission, is not determinative or even relevant in these proceedings. I agree with Administrative Law Judge Broderick that whether a cited violation is checked as significant and substantial is per se irrelevant to the determination of the appropriate penalty to be assessed. United States Steel Mining Co., Inc., 5 FMSHRC 934 (May 1983), PDR granted June 22, 1983.

Regardless of the Secretary's regulations, once this Commission's jurisdiction attaches we have our own statutory responsibilities to fulfill and discharge. This can only be done on the basis of an adequate record.

ORDER

In light of the foregoing, it is Ordered that the Solicitor's motion for settlement be Denied.

It is further Ordered that within 30 days from the date of this order the Solicitor file information adequate for me to determine whether the proposed penalties are justified and settlement warranted. Otherwise, this case will be assigned and set down for hearing on the merits.

Paul Merlin
Chief Administrative Law Judge