Secretary of Labor (MSHA) v. Emery Mining Corporation (ALJ decision, August 23, 1983)

Plain-English summary

The Commission held that Emery Mining's annual refresher training had to occur within twelve months of each miner's previous training, reversing the judge's earlier calendar-year reading. On remand, Judge Charles C. Moore, Jr. addressed only the penalty for violations already found by the Commission. He found no negligence or proven gravity, noting that MSHA had approved the company's training plan and that he had shared its interpretation of the rule. He assessed a total $100 penalty for the violations and directed MSHA to rescind the policy memorandum discussed in his order.

Decision snapshot

• Cited standard: 30 C.F.R. § 48.8(a), annual refresher training.
• Outcome: $100 total penalty assessed for violations established on Commission review, payable within 30 days.
• Key point: The judge treated the company's interpretation and MSHA's approval of its plan as reasons for a low penalty after the Commission resolved the rule's meaning.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. EMERY MINING
DDATE:
19830823
TTEXT:
~1465

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: WEST 82-48
PETITIONER
A.O. No: 42-00121-03103

v. Docket No: WEST 82-80
A.O. No: 42-00121-03106 H
EMERY MINING CORPORATION,
RESPONDENT
Deer Creek Mine

AND

EMERY MINING CORPORATION,
CONTEST PROCEEDINGS
APPLICANT
Docket No: WEST 81-400-R
v. Order No: 1022357 9/9/81

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
Deer Creek Mine
ADMINISTRATION (MSHA),
RESPONDENT

DECISION ON REMAND

Appearances: James H. Barkley, Esq., Office of the Solicitor, U.S. Department of Labor, Denver, Colorado, for Petitioner Evert W. Winder, Manager, Health and Safety, Emery Mining Corporation, Huntington, Utah, Todd D. Peterson, Esq., Attorney for Respondent

Before: Judge Moore
~1466
On August 11, 1983, the Commission remanded the above case to me for the purpose of assessing the appropriate civil penalty. The Commission has decided that the violations occurred, hence I have only the criteria to consider. The regulation in question states:

"each miner shall receive a minimum of 8 hours of annual refresher training as prescribed in this section."

The company and I interpreted the words "annual refresher training" as meaning once every calendar year. The government argues that the words mean "within 12 months", but in its appeal brief sort of "weazel" words it in such a way that it means every 13 months (see government exhibit 1 and page 9 of the government's main brief). The Commission interprets the words to mean "within 12 months of the last received training". */

The Commission's ruling necessitates the recision of government exhibit 1, which is a MSHA policy memorandum No: 81-2ET. MSHA is accordingly ordered to rescind that policy memorandum.

I can not find that the respondent was negligent when I agree with respondent's interpretation of the regulation. The fact that the Commission disagreed does not mean that respondent was negligent. I therefore find no negligence.

There was no gravity proved and I therefore find none.
Also, the fact that MSHA approved respondent's refresher training plan, militates against substantial penalties. A total penalty of $100 is assessed for all violations involved.

Emery Mining Company is accordingly ORDERED to pay to MSHA within 30 days, a civil penalty in the total sum of $100.

Charles C. Moore, Jr.
Administrative Law Judge

*/ The Commission's ruling will result in the continual advance of the retraining date. If a miner is trained on June 5 of one year then June 5 of the following year is not within the last 12 months. A miner must be retrained before June 5.