Secretary of Labor (MSHA) v. Big Ten Corporation (ALJ decision, August 15, 1980)

Plain-English summary

MSHA sought penalties from Big Ten Corporation for citations at its No. 2 Mine. After further investigation, MSHA asked to withdraw two citations alleging inadequate short circuit and overload protection at battery charging stations; it said fuses at the power source provided the required protection. MSHA also proposed settling a citation for inadequate guards at a surface belt drive for $60, reduced from $106. Judge Edwin S. Bernstein approved the withdrawal, vacated the two electrical citations, and approved the $60 settlement. Eight other citations in the same docket were addressed in a separate decision issued that day.

Decision snapshot

• Cited standards: 30 C.F.R. § 77.506, electrical protection; 30 C.F.R. § 77.400, guarding moving machine parts.
• Outcome: Citation Nos. 0682727 and 0682728 vacated; settlement of Citation No. 0682316 approved for $60, payable within 30 days.
• Key point: The fuses at the power source defeated the two electrical allegations, while the parties resolved the belt guard citation for a reduced penalty.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, 10TH FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
(703) 756-6225

15 AUG 1980

SECRETARY OF LABOR,
: Civil Penalty Proceeding
MINE SAFETY AND HEALTH
:
ADMINISTRATION (MSHA),
: Docket No. VA 80-30
Petitioner : A.O. No, 44-03525-03014
v. :
: Mine: No. 2
BIG TEN CORPORATION,
:
Respondent :

DECISION AND ORDER APPROVING
PARTIAL SETTLEMENT AND PARTIAL WITHDRAWAL OF PETITION

Appearances: Covette Rooney, Esq., Office of the Solicitor, U.S. Department of Labor, Philadelphia, Pennsylvania, for Petitioner;
Gerald L. Gray, Esq., Clintwood, Virginia, for Respondent.

Before: Judge Edwin S. Bernstein

This case originally involved 14 citations issued pursuant to the

Federal Mine Safety and Health Act of 1977 (the Act). On April 28, 1980, a

Decision and Order Approving Settlement in Docket No. VA 80-29 and Partial

Settlement in Docket No. VA 80-30 was issued in which I approved settlement

with respect to three of the 14 citations. A hearing concerning the remain-

ing 11 citations was convened on June 24, 1980, in Bristol, Tennessee. At

that time, I entertained the following motions and issued the following

bench decision:

JUDGE BERNSTEIN: This case originally involved fourteen
separate citations. By a previous motion, the parties requested
approval of the settlement of citation numbers 682319, 682321,
and 682714.

2289
 By order dated April 28, 1980, I approved the settlement

of those citations.

This leaves eleven citations. At a prehearing conference,

counsel have advised me that they wish to move for dismissal

and vacation of two of the citations and they will move for

approval of a settlement with regard to one other.

At this time, Ms. Rooney, if you could indicate, for the

record, your motion with regard to the two citations you wish

to have vacated.

MS. ROONEY: Yes, Your Honor. The Secretary of Labor

hereby moves the withdrawal of the petition issued in the

instant case with regard to citation numbers 00682727 and

00682728, issued in error.

As reasons for this motion, the Secretary states that the

attorney for the Secretary and Respondent’s attorney, have

discussed the alleged violations and the six statutory criteria

stated in Section 110 of the Federal Mine Safety and Health Act

of 1977. Pursuant to those discussions, facts were disclosed

which warrant a finding that citation numbers 00682727 and

00682728 were issued in error.

The petition, with respect to the aforementioned citations,

should be withdrawn for the following reasons: The citations

were issued for violation of 30 CFR 77.506. The citations set

2290

forth that the number one and number two battery charging stations

were not provided with fuses of the correct capacity to protect

against short circuits and overloads. The fuses had been bridged

out, rendering short circuit and overload protection inoperable.

However, further investigation has revealed that short cir-

cuit and overload protection was, in fact, provided. The fuses at

the power source, i.e., the switch box, was adequate and provided

the mandated protection. Thus, the citations as issued cannot be

supported by the facts stated therein.

The inspector who issued the citations has been consulted

and he agrees that the motion to withdraw the petition would be

appropriate with respect to the aforementioned citations.

In view of the foregoing, the Secretary requests that its

motion be granted and that citation numbers 00682727 and 00682728

be vacated and the civil penalty petition be withdrawn regarding

these two citations.

JUDGE BERNSTEIN: Is there any comment by the Respondent?

MR. GRAY: We don’t object to that at all, Your Honor. I

think it is highly appropriate.

JUDGE BERNSTEIN: The motion is granted. I want to compli-

ment counsel on a very thorough presentation of this motion.

Let’s move to the citation on which the parties wish me to

approve settlement.

2291
MS. ROONEY: The Secretary hereby moves to dismiss this
proceeding and for the Administrative Law Judge to approve
the negotiated settlement between the parties pursuant to

29 CFR 2700.30(c).

As reasons for the motion, the Secretary states that the
attorney for the Secretary and the Respondent’s attorney have
discussed the alleged violation and the six statutory criteria
stated in Section 110 of the Federal Mine Safety and Health

Act of 1977.

A reduction from the original assessment of one hundred
six dollars ($106.00) is warranted for citation number 00682316,
issued for a violation of 30 CFR 77.400. The citation was
issued for inadequate guards at the number one belt drive
located on the surface.

Guards were on the right side. However, the head roller
had a hole at the take-up roller one foot six inches wide and

two feet six inches high.
On the left side, facing the head
roller, the power roller had a hole one foot wide and two feet
high.

Further investigation has disclosed that this condition
had existed for a number of years and had been found adequate

in prior MSHA inspections.
This does not indicate that a viola-

tion did not exist,
However, it does mitigate the operator’s
knowledge of the condition; hence, the operator’s negligence.

2292

Also, the guard was set up so that only if a man or

woman got down on his or her hands and knees and crawled

through the hole could that person get hurt. Thus, the

probability of injury was slightly reduced. The gravity of

the injury was appropriately assessed as permanently disabling.

The condition was abated within the time fixed.

The operator is a relatively small operator and in the

twenty-four months immediately prior to assessment of penalty

of the instant case, the operator had received sixty-three

violations.

For these reasons, a reduction in penalty from one hundred

six dollars ($106.00) to sixty dollars ($60.00) is appropriate.

And the Secretary requests that its motion be granted and the

settlement approved.

JUDGE BERNSTEIN: Is there any comment by Respondent?

MR. GRAY: No, sir.

JUDGE BERNSTEIN: Again, I’d like to indicate my compliments

to counsel on a very thorough job of presenting the supplemental

motion.

I think this type of motion could be used as an example to

other counsel for the Secretary of Labor and I am impressed by

not only the format of her motion but the content. I am con-

vinced that the settlement, in the reduced amount, is appropriate

and I approve that settlement.

2293
I hereby affirm these bench decisions.

ORDER

Petitioner's motion to approve withdrawal of the petition with respect

to Citation Nos. 0682727 and 0682728 is GRANTED and those citations are

VACATED. Petitioner's motion to approve settlement with respect to Citation

No. 0682316 is GRANTED and Respondent is ORDERED to pay $60 in penalties
within 30 days of the date of this Order in satisfaction of that citation. */

Edwin S. Bernstein
Administrative Law Judge

Distribution:

Covette Rooney, Esq., Office of the Solicitor, U.S. Department of Labor, Room 14480, 3535 Market Street, Philadelphia, PA 19104 (Certified Mail)

Gerald L. Gray, P.C., Attorney for Big Ten Corporation, P.O. Box 238, Clintwood, VA 24228 (Certified Mail)
*/ The remaining eight citations, Nos. 0682317, 0682318, 0682320, 0682322,
5682715, 0682716, 0682717, and 0682719 are the subject of a separate Decision
issued today.

2294