Garden Creek Pocahontas Company

Plain-English summary

This civil penalty proceeding involved one alleged violation of a mandatory safety standard at Garden Creek Pocahontas Company's VP-6 Mine. The citation concerned a belt conveyor that periodically started unexpectedly while idled in sequence mode. The parties settled the proposed $189 penalty for $136, and the Secretary stated that the operator was making good-faith efforts to correct the problem, reducing the apparent negligence. Judge David F. Barbour approved the settlement and ordered payment of $136, after which the proceeding was to be dismissed.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.1102
• Outcome: The proposed $189 penalty was reduced by settlement to $136, with dismissal after payment.
• Key point: Evidence that an operator knew about a malfunction and was making good-faith efforts to correct it supported reducing the proposed penalty.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. GARDEN CREEK POCAHONTAS
DDATE:
19930519
TTEXT:

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      FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. VA 92-188
Petitioner : A.C. No. 44-04517-03693
v. :
: Mine: VP-6
GARDEN CREEK POCAHONTAS :
COMPANY, :
Respondent :

                DECISION APPROVING SETTLEMENT

Before: Judge Barbour

                 Statement of the Proceeding

 This proceeding concerns proposals for assessment of a civil

penalty 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 a civil penalty assessment for
one alleged violation of a certain mandatory safety standard
found in Part 75, Title 30, Code of Federal Regulations. The
Respondent filed a timely answer denying the alleged violation.

 The parties now have decided to settle the matter, and they

have filed a motion pursuant to Commission Rule 30, C.F.R.
2700.30, seeking approval of the proposed settlement. Th
citation, initial assessment, and the proposed settlement amount
is as follows:

                         30 C.F.R.

Citation No. Date Section Assessment Settlement
4002121 08/05/92 75.1102 $189 $136

 In support of the proposed settlement disposition of this

case, the Petitioner has submitted information pertaining to the
six statutory civil penalty criteria found in Section 110(i) of
the Act, included information regarding Respondent's size and
ability to continue in business and history of previous
violations.

 In particular, with regard to Citation No. 4002121,

Petitioner notes that the violation concerned the malfunctioning
of Respondent's belt conveyor which was periodically starting
erroneously when being idled on the sequence mode. Petitioner
asserts that unbeknownst to the inspector, Respondent was fully
aware of the problem and was making good faith attempts to
correct it. Thus, Respondent's negligence was less than supposed

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by the inspector.

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CONCLUSION

 After review and consideration of the pleadings, arguments,

and submissions in support of the motion to approve the proposed
settlement of this case, I find that approval of the suggested
reduction in the penalty assessed for the subject violation is
warranted and the proposed settlement disposition is reasonable
and in the public interest. Pursuant to 29 C.F.R. 2700.30, the
motion IS GRANTED, and the settlement is APPROVED.

                          ORDER

 Respondent IS ORDERED to pay a civil penalty in the

settlement amount shown above in satisfaction of the violation in
question. Payment is to be made to MSHA within thirty (30) days
of the date of this proceeding and upon receipt of payment, this
proceeding is DISMISSED.

                          David F. Barbour
                          Administrative Law Judge
                          (703)756-5232

Distribution:

James V. Blair, Esq., Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Boulevard, Suite 516,
Arlington, VA 22203 (Certified Mail)

Marshall S. Peace, Esq., 201 W. Vine Street, Lexington, KY 40507
(Certified Mail)
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