Secretary of Labor (MSHA) v. C. J. Langenfelder & Son, Inc. (ALJ decision, July 15, 1983)

Plain-English summary

The Secretary proposed settling 12 citations against C. J. Langenfelder & Son for $240, or $20 per violation. The cited conditions at Buchanan No. 1 Mine included a nonworking automatic warning device, an inadequate fire extinguisher, and nonworking lights. Chief Judge Paul Merlin denied the settlement because the motion supplied no facts about gravity, negligence, or the other statutory penalty criteria. He held that MSHA's single penalty regulation did not bind the Commission and that the operator's payment of the assessed amount did not prevent independent review. The judge ordered the Solicitor to provide adequate information within 30 days or prepare for a hearing. He assessed no final penalty.

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 safety standards are not numbered in this order.
• Outcome: Proposed $240 settlement denied; more information required within 30 days or a hearing would follow.
• Key point: Payment of the assessed amount did not relieve the judge of examining the statutory penalty factors.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

July 15, 1983

SECRETARY OF LABOR,
CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Docket No. VA 83-7
Petitioner
A.C. No. 44-0404856-03501-I37
v.
Buchanan No. 1 Mine
C. J. LANGENFELDER & SON,
INC.,
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 $240 for the 12 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. I have reviewed the 12 violations. They were issued for a variety of conditions including inoperative automatic warning device, lack of a suitable fire extinguisher and inoperative lights.

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 of the other statutory factors which would enable me to make an informed judgment as to proper penalty amounts. The fact the operator has paid the $240 cannot preclude the Commission from acting in accordance with the governing statute.

Section 100.4 is not binding upon this 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 Com- mission the amount of the penalty to be assessed is a de novo

1271 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 deter- minative 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

Distribution:

Agnes M. Johnson-Wilson, Esq., Office of the Solicitor, U. S. Department of Labor, Rm. 14480-Gateway Building, 3535 Market Street, Philadelphia, PA 19104 (Certified Mail)

C. J. Langenfelder & Son, Inc., Mr. Harry M. Elliott, Treasurer, 8427 Pulaski Highway, Baltimore, MD 21237 (Certified Mail)

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