Tunnelton Mining Company

Plain-English summary

Tunnelton Mining Company faced seven alleged safety violations at Marion Mine across three dockets. The parties agreed to settle all seven citations, with four paid at the proposed amounts and three reduced. One significant-and-substantial finding was modified to non-S&S because injury was unlikely. Judge George A. Koutras approved settlement payments totaling $539 and dismissed the proceedings upon payment.

Decision snapshot

• Cited provisions: 30 C.F.R. §§ 75.1107-1(a)(3)(ii), 75.1403, 75.523-2(c), 75.400, and 75.202(a)
• Outcome: Seven citations were settled, with the proposed amounts reduced for three citations, for total payments of $539.
• Key point: The Judge approved the settlement after considering the cited conditions, abatement, and the Mine Act penalty criteria.

Full text (FMSHRC public release)

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH Docket No. PENN 89-108
ADMINISTRATION (MSHA), A.C. No. 36-00929-03650
PETITIONER

      v.                                Docket No. PENN 89-109
                                        A.C. No. 36-00929-03652

TUNNELTON MINING COMPANY,
RESPONDENT Docket No. PENN 89-131
A.C. No. 36-00929-03654

                                        Marion Mine

                             DECISIONS

Appearances: Mark V. Swirsky, Esq., Office of the Solicitor,
U.S. Department of labor, Philadelphia,
Pennsylvania, for the Petitioner;
Joseph A. Yuhas, Esq., Tunnelton Mining Company,
Ebensburg, Pennsylvania, for the Respondent.

Before: Judge Koutras

                    Statement of the Proceedings

 These proceedings concern proposals for assessment of civil

penalties filed by the petitioner against the respondent pursuant
to section 110(a) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. 820(a), seeking civil penalty assessments for
seven alleged violations of certain mandatory safety standards
found in Part 75, Title 30, Code of Federal Regulations. The
respondent filed timely answers denying the violations, and the
cases were heard in Indiana, Pennsylvania, with several other
docketed cases during the hearing term October 31, and November
1, 1989.

                               Issues

 The issues presented in these proceedings are (1) whether

the conditions or practices cited by the inspector constitute
violations of the cited mandatory safety standards, (2) the
appropriate civil penalties to be assessed for the violations,

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taking into account the statutory civil penalty criteria found in
section 110(i) of the Act; and (3) whether the violations were
"significant and substantial."

           Applicable Statutory and Regulatory Provisions

 1. The Federal Mine Safety and Health Act of 1977, 30 U.S.C.

301, et seq

 2. Commission Rules, 29 C.F.R.     2700.1, et seq.

Stipulations

 The parties presented stipulations in Docket No. PENN

89-109, and they agreed that these stipulations were equally
applicable to all of the cases. The matters stipulated to are as
follows:

      1. Tunnelton Mining Company is a subsidiary of
      Pennsylvania Mines Corporation.

      2. Tunnelton Mining Company is subject to the
      jurisdiction of the Federal Mine Safety and Health Act
      of 1977.

      3. The Administrative Law Judge has jurisdiction in
      these proceedings.

      4. The subject citations were properly served by a duly
      authorized representative of the Secretary of Labor
      upon an agent of the respondent at the dates, times,
      and places stated therein, and may be admitted into
      evidence for the purpose of establishing their
      issuance, and not for the truthfulness or relevancy of
      any statements asserted therein.

      5. The respondent demonstrated good faith in the
      abatement of the citations.

      6. The assessment of civil penalties in these
      proceedings will not affect respondent's ability to
      continue in business.

      7. The appropriateness of the penalties, if any, to the
      size of the respondent's business should be based on the
      fact that:

             a. The Pennsylvania Mines Corporation annual
             production tonnage is 1,435,690;

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b. The Tunnelton Mining Company's
annual production tonnage is 733,668.

      8. The respondent Tunnelton Mining Company was assessed
      294 violations over 539 inspection days during the 24
      months preceding the issuance of the subject citations.

      9. The parties stipulate to the authenticity of their
      exhibits, but not to their relevance, nor to the truth
      of the matters asserted therein.

                           Discussion

 All of the contested citations in issue in these proceedings

are section 104(a) citations, with "S&S" findings. During opening
statements at the hearings, the parties confirmed that they
agreed to settle all of the violations, and they presented
arguments on the record in support of their proposed settlement
disposition of the cases, including arguments in support of the
civil penalty reductions for three of the citations. The
respondent agreed to make full payment of the proposed civil
penalty assessments for the remaining four citations.

 With regard to Citation No. 2888721 (Docket No. PENN

89-109), the parties agreed that an injury was unlikely, and
petitioner's counsel agreed to modify the gravity finding to
non-S&S. In Docket No. PENN 89-108, the parties agreed that the
cited battery charger in question was enclosed in a designated
battery charging station, thereby reducing the likelihood of any
hazard (Citation No. 2888733). With regard to Citation No.
2888734, concerning an inoperable warning device, the parties
agreed that the cited machine was an inherently loud and
slowmoving vehicle, thereby mitigating any potential hazard that
it could not be heard or seen. In both instances, the inspector
made "low negligence" findings, and the citations were abated
within 10 and 25 minutes (Tr. 5-15).

                    Findings and Conclusions

 After careful consideration of the pleadings and arguments

made by the parties in support of the proposed settlement of the
violations in question, including a review of all of the
conditions and practices cited, and the civil penalty criteria
found in section 110(i) of the Act, the proposed settlement
dispositions were approved from the bench, and my decisions in
this regard are herein reaffirmed. The violations, proposed civil
penalty assessments, and the settlement amounts are as follows:

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Docket No. PENN 89-108

Citation No. Date 30 C.F.R. Section Assessment Settlement

2888733 01/04/89 75.1107-1(a)(3)(ii) $ 91 $ 68
2888734 01/06/89 75.1403 $ 74 $ 54

Docket No. PENN 89-109

Citation No. Date 30 C.F.R. Section Assessment Settlement

2888866 12/06/88 75.523-2(c) $ 98 $ 98
2888721 12/06/88 75.400 $ 74 $ 37

Docket No. PENN 89-131

Citation No. Date 30 C.F.R. Section Assessment Settlement

2884557 02/08/89 75.202(a) $ 85 $ 85
2884558 02/09/89 75.202(a) $ 85 $ 85
2884559 02/09/89 75.202(a) $112 $112

                             ORDER

 Respondent IS ORDERED to pay civil penalties in the

settlement amounts shown above in satisfaction of the citations
in question within thirty (30) days of the date of these
decisions and order, and upon receipt of payment by the
petitioner, these proceedings are dismissed.

                               George A. Koutras
                               Administrative Law Judge