Secretary of Labor (MSHA) v. Asphalt Mining & Concrete Company (ALJ decision, September 28, 1983)

Plain-English summary

Asphalt Mining & Concrete Company paid the proposed $20 assessments for six citations after the Secretary filed a penalty petition. The Secretary then asked to dismiss the case. Chief Administrative Law Judge Paul Merlin denied that request because the motion gave only general statements about negligence and gravity, even though the citations appeared to involve moderate to serious accident risks. He directed the Secretary to provide information about each citation within 30 days so he could assess appropriate penalties. The case would go to a hearing if the information was not supplied; this order did not set final penalties.

Decision snapshot

• Governing rule: 30 C.F.R. § 100.4, MSHA's single penalty assessment rule, which the judge said did not bind the Commission.
• Outcome: Motion to dismiss denied; Secretary directed to provide citation-specific penalty information.
• Key point: Payment of MSHA's proposed $20 assessments did not relieve the judge of independently applying the Mine Act's penalty factors.

Full text (FMSHRC public release)

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

September 28, 1983

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner v.
ASPHALT MINING & CONCRETE
COMPANY,

CIVIL PENALTY PROCEEDING
Docket No. WEST 83-79-M
A.C. No. 02-02126-05501
Portable Crusher No. 1

DENIAL OF MOTION TO DISMISS

ORDER TO SUBMIT INFORMATION

In a Motion to Dismiss filed on September 12, 1983, the Solicitor advises that subsequent to filing his penalty petition Respondent paid the full amount of the proposed assessment for the six citations involved in this matter. The proposed assessments were $20 apiece for a total of $120.

The Solicitor's motion to dismiss represents that this is a small mine with no prior history. The Solicitor does not discuss any of the citations individually but rather represents generally that gravity is estimated as moderate and that an accident could have occurred resulting in an injury causing lost work days or a disablement. In addition, negligence is generally estimated as moderate and the employer should have known of the existence of the violative condition.

I am unable to approve the motion to dismiss on the basis of the present record. Although the operator is small and without a prior history, $20 is in my opinion a nominal penalty which indicates a lack of gravity. I have read all of the citations and on their face I must agree with the Solicitor that they appear to present the danger of a moderate to serious accident. Under such circumstances the purposes of the Act simply are not effectuated by rubber- stamping the Assessment Office's $20 penalties.

Although the Solicitor does not mention the MSHA penalty assessment regulations, it appears from the assessment sheet that all six penalties were assessed pursuant to the so- called "single penalty assessment" formula. Section 100.4 of the regulations of the Mine Safety and Health Administra- tion, 30 C.F.R. § 100.4, 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. This regulation is not binding upon the Com- mission and indeed, is not even relevant once the Commission's jurisdiction attaches. The Act makes very clear that penalty petitions 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 Commission the amount of the penalty to be assessed is a de novo 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). The Solicitor's motion to dismiss does not give me enough data upon which to make a reasoned and informed de novo determination of appro- priate penalty amounts. The Solicitor must discuss each citation separately and not make blanket assertions about each of the statutory criteria. Moreover, in this instance even the blanket assertions regarding gravity and negligence do not support $20 penalties.

In light of the foregoing, it is Ordered that the Solicitor's motion to dismiss 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 appropriate penalty amounts sufficient to justify settlement. Otherwise, this case will be assigned and set down for hearing on the merits.

Paul Merlin
Chief Administrative Law Judge

/ln

Distribution:

Marshall P. Salzman, Esq., Office of the Solicitor, U. S. Department of Labor, 11071 Federal Building, 450 Golden Gate Avenue - Box 36017, San Francisco, CA 94102 (Certified Mail)

Ms. Theresa Sanders, President, Asphalt Mining and Concrete Company, P. O. Box 1106, Mesa, AR 85201 (Certified Mail)