Secretary of Labor (MSHA) v. Asarco, Incorporated (ALJ decision, June 30, 1981)
Secretary of Labor (MSHA) v. Asarco, Incorporated (FMSHRC WEST 79-124-M and six other dockets): Some citations withdrawn, remaining penalties assessed
Apply this to your situation
This order from 1981 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.
Plain-English summary
MSHA brought seven civil penalty cases against Asarco's Leadville Mine. At the hearing, the Secretary withdrew several citations, citing insufficient evidence or other problems with proving them, and the judge vacated those citations and their proposed penalties. Asarco withdrew its contests of the remaining citations, which the judge affirmed with assessed penalties. The judge ordered Asarco to pay each docket's assessed amount within 30 days of this order.
Decision snapshot
- Cited standards: The decision refers to several mine safety standards but does not identify them by number.
- Outcome: Some citations vacated and the remaining citations affirmed with assessed penalties.
- Key point: The judge approved the Secretary's withdrawal of unsupported citations and Asarco's withdrawal of its contests to the others.
Full text (FMSHRC public release)
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 333 W. COLFAX AVENUE. SUITE 400
DENVER, COLORADO 80204
JUN 30 1981
SECRETARY OF LABOR, MINE SAFETY AND CIVIL PENALTY PROCEEDING
HEALTH ADMINISTRATION (MSHA),
DOCKET NO. WEST 79-124-M
Petitioner,
MSHA CASE NO. 05-00516-05010
DOCKET NO. WEST 79-125-M
v. MSHA CASE NO. 05-00516-05011
DOCKET NO. WEST 79-126-M
ASARCO, INCORPORATED,
MSHA CASE NO. 05-00516-05012
Respondent.
DOCKET NO. WEST 79-207-M
MSHA CASE NO. 05-00516-05013
DOCKET NO. WEST 79-310-M
MSHA CASE NO. 05-00516-05014
DOCKET NO. WEST 81-12-M
MSHA CASE NO. 05-00516-05022
DOCKET NO. WEST 81-13-M
MSHA CASE NO. 05-00516-05023
MINE: Leadville Mine
Appearance:
James H. Barkley, Esq.
Office of the Solicitor
United States Department of Labor
1585 Federal Building
1961 Stout Street
Denver, Colorado 80294
For the Petitioner,
Earl K. Madsen, Esq.
BRADLEY, CAMPBELL & CARNEY
1717 Washington Avenue
Golden, Colorado 80401
For the Respondent
Before: Judge John A. Carlson
DECISION
These cases involve the same parties and similar issues of fact and law. Accordingly, they are consolidated.
The Secretary of Labor has charged Asarco, Inc., with violations of several safety standards promulgated under the Federal Mine Safety and Health Act. 30 U.S.C. § 801 et seq. At a hearing held on May 20, 1981, the parties offered the following disposition of these cases.
1691
WEST 79-124-M
The Secretary moved to withdraw citation nos. 333491, 333492 and 328533 and their proposed penalties. (Tr. 6). A written motion was submitted at the hearing.. As reason therefor, petitioner stated that there was insufficient evidence to support these citations. (Tr. 6).
Pursuant to 29 C.F.R. 2700.11, the motion is granted. Citation nos. 333491, 333492 and 328533 and the corresponding proposed penalties are vacated.
As to the remaining citations, Asarco moved to withdraw its notice of contest. (Tr. 6). Pursuant to 29 C.F.R. 2700.11, the motion is granted. The following citations and their respective penalties are affirmed.
Citation No. Penalty
328524 $180.00
328525 195 .00
328526 275.00
328527 195 .00
328530 180.00
333486 160.00
328532 345 .00
328534 379.00
328536 195 .00
333488 160.00
333489 225.00
333490 225.00
333493 180.00
333494 210.00
333495 210.00
$3,305 .00
WEST 79-125-M
The Secretary moved to withdraw citation nos. 333397, 333390 and their proposed penalties. (Tr. 8). A written motion was also submitted.
As reason therefor, petitioner stated that these citations had no precedential value and the Mine Safety and Health Administration (MSHA) inspector who issued them is no longer employed by the Agency. The inspector is the only individual who can testify in support of these citations (Tr. 8). In the written motion the Secretary stated that there was a lack of evidence to support these citations. Pursuant to 29 C.F.R. 2700.11, the motion is granted. Citation nos. 333397 and 333390 and their respective proposed penalty are vacated.
Respondent moved. to withdraw its notice of contest to the remaining citations. Pursuant to 29 C.F.R. 2700.11, the motion is granted. (Tr. 9).
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The following citations and the corresponding penalties are affirmed.
Citation No. Penalty
333385 $ 170.00
333386 170.00
333387 122.00
333388 170.00
333389 170.00
333391 160.00
333392 160.00
333393 130.00
333394 240.00
333395 122 .00
333396 150.00
333399 170.00
333400 90.00
333881 195.00
333883 90.00
333885 90.00
$2,399.00
WEST 79-126
Asarco moved to withdraw its notice of contest to all of the citations at issue. (Tr. 10). Pursuant to 29 C.F.R. 2700.11, the motion is granted. The following citations and corresponding penalties are affirmed.
Citation No. Penalty
333889 $ 98.90
333890 98.00
334435 150.00
334436 180.00
334438 225.00
334439 305.00
$1,056.00
WEST 79-207
The Secretary moved to withdraw citation nos. 333882, 333884, 333887, 330411 and 334437 and their proposed penalties. (Tr. 9, 10). A written motion was also submitted.
As reason therefor, petitioner stated that as to the first three citations, the MSHA inspector who issued them is no longer employed by the Agency. The inspector is the only individual who can testify in support of these citations. (Tr. 9). The Secretary also stated at the hearing and in his motion that there is insufficient evidence to support the five citations. (Tr. 10).
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Pursuant to 29 C.F.R. 2700.11, the motion is granted. Citation nos. 333882, 333884, 333887, 330411, 334437 and their respective penalty are vacated.
Asarco moved to withdraw its notice of contest to the remaining citations. (Tr. 11). Pursuant to 29 C.F.R. 2700.11, the motion is granted. The following citations and the corresponding penalties are affirmed.
Citation No. Penalty
328535 $ 170.00
328537 130.00
333398 130.00
334440 180.00
330412 225.00
330413 210.00
330414 305 .00
330416 210.00
334402 150.00
334403 210.00
$1,920.00
WEST 79-310-M
Asarco moved to withdraw its notice of contest to citation no. 330415 which is the subject of this proceeding, (Tr. 12). Pursuant to 29 C.F.R. 2700.11, the motion is granted. Citation no. 330415 and the penalty of
$180.00 are affirmed.
WEST 81-12-M
The Secretary moved to withdraw Citation nos. 566731, 566407, 566408, 567031 and 567033 (Tr. 12, 13). A written motion was also submitted.
In support thereof, the Secretary stated as to Citation no. 566731 that he had insufficient evidence. (Tr. 12). Concerning Citation nos. 566407, 566408 and 567031, the Secretary stated that Asarco had a program of regular inspections of the posts involved which may have revealed that some were loose, the condition cited by the inspector. Therefore, the circumstances may not have constituted a violation of the standard. (Tr. 13).
As to Citation no. 567033, petitioner stated that the blasting wire in question was properly supported, and therefore, no violation occurred. Respondent stated that proper shunting and equipment were used and there was no improper handling of the blasting box (Tr. 13). The Secretary agreed to these facts; (Tr. 15).
Pursuant to 29 C.F.R. 2700.11, the Secretary’s motion is granted. The above citations and their respective penalties are vacated.
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Asarco moved to withdraw its notice of contest to the remaining Citations. (Tr. 14). Pursuant to 29 C.F.R. 2700.11, the motion is granted. The following Citations and their respective penalties are affirmed.
Citation No. Penalty
566404 $ 84.00
566405 60.00
566406 255 .00
567026 34.00
567027 48 .00
567028 78.00
567029 78.00
567030 240.00
567032 140.00
567034 180.00
566409 98.00
566410 84.00
567035 90.00
567036 60.00
567037 90 .00
44.00
$1,663.00
WEST 81-13-M
The Secretary moved to withdraw Citation no. 566732 and the proposed, penalty. (Tr. 15). A written motion was also submitted. In support thereof the Secretary stated that there was insufficient evidence to support the Citation. (Tr. 15).
Pursuant to 29 C.F.R. 2700.11, the motion is granted. Citation no. 566732 and the proposed penalty are vacated.
As to the remaining citations, Asarco moved to withdraw its notice of contest. (Tr. 16). Pursuant to 29 C.F.R. 2700.11, the motion is granted. The following citations and corresponding penalties are affirmed.
Citation No. Penalty
567038 $114.00
567040 90.00
$204.00
The Secretary stated that as to all citations he proposed to withdraw, in the above cases except those withdrawn because of the unavailability of the inspector, the petitioner and respondent reviewed all the evidence and the Secretary discussed the matters thoroughly with MSHA before submitting its motion. (Tr. 15, 16).
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Respondent shall pay the penalty amount assessed for each docket number within 30 days of the date of this order.
SO ORDERED.
John A. Carlson
Administrative Law Judge
Distribution:
James H. Barkley, Esq.
Office of the Solicitor
United States Department of Labor
1585 Federal Building
1961 Stout Street
Denver, Colorado 80294
Earl K. Madsen, Esq.
BRADLEY, CAMPBELL & CARNEY
1717 Washington Avenue
Golden, Colorado 80401
1696
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