Secretary of Labor (MSHA) v. Viking Mining Corporation (ALJ decision, July 15, 1983)

Plain-English summary

MSHA cited Viking Mining for failing to take a valid respirable dust sample during the October to November 1982 sampling period. The Secretary proposed a $20 settlement under MSHA's single penalty rule. Chief Judge Paul Merlin denied approval because the record gave no information about gravity, negligence, or other factors needed to assess the penalty. He held that MSHA's rule, its nonsignificant and substantial designation, and the operator's tender of payment did not bind the Commission. He required the Secretary to provide supporting information within 30 days or prepare for 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: Proposed $20 settlement denied pending information or a hearing; no final penalty entered.
• Key point: A nominal proposed penalty needs evidence addressing the Mine Act's penalty factors.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. VIKING MINING
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. VA 83-17
PETITIONER
A.C. No. 44-03604-03504

v. Mine No. 1

VIKING MINING CORPORATION,
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 $20 for the one violation involved in this matter. The 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. This violation was issued because the operator did not take one valid respirable dust sample from the designated area for the bimonthly sampling period of October-November 1982.

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 have been told nothing about gravity, negligence or any other 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. Moreover, the fact that the operator has tendered payment cannot preclude the Commission from acting in accordance with the governing statute.

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

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proceeding before the 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 this violation is 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 fulfull 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 penalty is justified and settlement warranted. Otherwise, this case will be assigned and set down for hearing on the merits.

Paul Merlin
Chief Administrative Law Judge