Power Operating Company, Inc.

Plain-English summary

The Commission had reversed the judge's original finding that Power Operating Company committed a non-significant-and-substantial violation of 30 C.F.R. § 1710(e) and sent the case back for a new penalty assessment. On remand, Judge Avram Weisberger continued to find that the operator's negligence was less than moderate. Considering the Commission's finding that the violation was significant and substantial because an eye injury of a reasonably serious nature was reasonably likely, he assessed a $500 penalty for Citation No. 3709644.

Decision snapshot

• Cited provision(s): 30 C.F.R. § 1710(e); 30 U.S.C. § 820(i)
• Outcome: On remand, the violation remained significant and substantial, and the penalty was set at $500.
• Key point: A Commission S&S finding required a new penalty assessment even though the ALJ continued to find less-than-moderate negligence.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

             OFFICE OF ADMINISTRATIVE LAW JUDGES
                     2 SKYLINE, 10th FLOOR
                      5203 LEESBURG PIKE
                 FALLS CHURCH, VIRGINIA 22041


                        March 29, 1996

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
REVIEW COMMISSION, : Docket No. PENN 93-51
Petitioner : A. C. No. 36-02713-03576
v. :
: Leslie Tipple
POWER OPERATING COMPANY, INC., :
Respondent :

                   DECISION ON REMAND

Appearances: Linda Henry, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania for Petitioner;
Tim D. Norris, Esq., and Farrah Lynn Walker, Esq.,
Stradley, Ronon, Stevens & Young, Philadelphia,
Pennsylvania for Respondent.

Before: Judge Weisberger

 On March 18, 1996, the Commission (18 FMSHRC, Docket

No. PENN 93-51, March 18, 1996) issued a decision reversing my

initial finding that the cited violation of 30 C.F.R. § 1710(e)

(Citation No. 3709644) was not significant and substantial.

The Commission remanded for reassessment of the civil penalty.

 I reiterate my initial finding that Respondents negligence

was less than moderate (16 FMSHRC 591,607). Taking cognizance of

the Commission’s finding that the violation was significant and

substantial in that there was a reasonable likelihood of an eye

injury of a reasonably serious nature. I find that a penalty of

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$500 is appropriate.

                                Avram Weisberger

                                Administrative Law Judge

Distribution:

Linda Henry, Esq., Office of the Solicitor, U.S. Department of

Labor, 3535 Market Street, Room 14480, Gateway Building,

Philadelphia, PA 19104 (Certified Mail)

Tim D. Norris, Esq., and Farrah Lynn Walker, Esq., Stradley,

Ronon, Stevens & Young, 2600 One Commerce Square, Philadelphia,

PA 19103-7098

/ml

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