Secretary of Labor (MSHA) v. Elden and Sandra Wait (ALJ decision, November 24, 1980)

Plain-English summary

MSHA brought two penalty proceedings involving nine citations at Elden and Sandra Wait's Green Decorative Rock mine in California. After a hearing, Elden Wait moved to dismiss the citations based on a Ninth Circuit decision involving him. The Secretary did not oppose dismissal in light of that ruling. Judge Virgil E. Vail dismissed both proceedings, leaving no penalty assessed in this decision. The order does not describe the cited standards or explain the court's reasoning.

Decision snapshot

• Cited standards: None identified in this decision.
• Outcome: Both proceedings dismissed after the unopposed motion; no penalty assessed.
• Key point: The judge dismissed the citation cases after both sides addressed the intervening Ninth Circuit ruling.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. ELDEN & SANDRA WAIT
DDATE:
19801124
TTEXT:

~3395

Federal Mine Safety and Health Review Commission Office of Administrative Law Judges

SECRETARY OF LABOR, MINE SAFETY AND CIVIL PENALTY PROCEEDING HEALTH ADMINISTRATION (MSHA), PETITIONER DOCKET NO. WEST 79-171-M
A/O NO. 04-04256-05001 v.
DOCKET NO. WEST 79-172-M
ELDEN AND SANDRA WAIT,
A/O NO. 04-04256-05002
RESPONDENT
MINE: GREEN DECORATIVE ROCK

DECISION AND ORDER

APPEARANCES:
Alan M. Raznick, Esq., Office of the Solicitor, United States Department of of Labor, San Francisco, California, for the Petitioner

Elden L. Wait, RFD Box 8, Plymouth, California, for the Respondent

Before: Judge Virgil E. Vail

STATEMENT OF CASE

This proceeding was brought pursuant to section 110(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 820(a). The petition for assessment of civil penalty (now called a proposal for a penalty, 29 CFR 2700.27) was filed June 11, 1979 alleging nine violations of mandatory safety standards contained in 30 CFR Part 56. The violations were charged in citations issued to Respondent following an inspection of a mine in Amador County, California owned and operated by the Respondent.

Pursuant to notice, a hearing on the merits was held in Sacramento, California on September 9, 1980. Federal Mine Inspector Edward Knepper testified on behalf of the Petitioner. Elden Wait, owner and operator of the mine involved herein, testified on his own behalf.

Subsequent to the hearing in this case and prior to the submission of post hearing briefs, the Respondent moved that the nine citations be dismissed based upon a recent decision of the Ninth Circuit Court of Appeals. Ray Marshall, Secretary of Labor, United States Department of Labor v. Elden Wait, Trading and d/b/a Elden Wait, Greenstone Quarry No. 78-2345. The Petitioner has indicated that in light of the above decision of the Ninth Circuit Court of Appeals, he does not object to the Respondent's motion for dismissal.

~3396
In light of the foregoing, the above captioned cases are hereby DISMISSED.

Virgil E. Vail
Administrative Law Judge