Emery Mining Corporation (ALJ decision, April 7, 1987)

Plain-English summary

Emery Mining Corporation faced two roof-control citations at the Deer Creek Mine. The parties stipulated that the underlying violations had already been decided in related contest proceedings, so Judge John J. Morris addressed the civil penalties and applied the statutory penalty factors. The decision describes a deteriorated roof area used daily by more than 200 miners and a large loose rib in a switching area, both of which could have caused serious injuries if they fell. The Judge found high gravity and operator negligence, while recognizing that the conditions were immediately abated. He assessed $1,500 for Citation 2503818 and $500 for Citation 2503819.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.200
• Outcome: The two roof-control violations were affirmed for penalty purposes, with penalties of $1,500 and $500.
• Key point: The operator's history, the number of miners exposed, the potential for roof or rib falls, negligence, and prompt abatement drove the penalty assessment.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. EMERY MINING
DDATE:
19870407
TTEXT:

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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 86-84
PETITIONER
A.C. No. 42-00121-03598
v.
Deer Creek Mine
EMERY MINING CORPORATION,
RESPONDENT

DECISION

Before: Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and Health Administration, (MSHA), charges respondent with violating safety regulations promulgated under the Federal Mine Safety and Health Act, 30 U.S.C.A. 801 et seq., (the Act).

Prior to a hearing on the merits the parties submitted the case on stipulated facts.

The two citations involved here allege respondent violated 30 C.F.R. 75.200 which mandates roof control programs and plans.

Issues

The issues concern the appropriate civil penalties for the violations.

Stipulation

The parties stipulated as follows:

1. The citations at issue in this penalty proceeding were at issue in the contest cases docketed as WEST 86Ä35-R and WEST 86Ä36-R, which were fully tried on March 5, 1986. A decision in the cases was rendered on June 10, 1986.

(FOOTNOTE a1) 2. A full record was developed by the parties on the issues of violation and unwarrantable failure and the decision of the presiding judge on those issues was not reviewed by the Commission.

3. Having been decided in the contest proceedings, the issue of violation in this penalty proceeding is res judicata. Thus, the only issues in this penalty proceeding involve application of the six statutory factors required under 110(i) for determination of an appropriate civil penalty to be assessed against Emery for the violation.

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4. The Secretary and Emery believe the record in WEST 86Ä35-R and WEST 86Ä36-R can be used by the presiding judge to evaluate the gravity and negligence connected with the violation and stipulate, without further argument, to the use of that record for such purpose.

5. The Secretary and Emery stipulate that the violations which were the subject of WEST 86Ä35-R and WEST 86-36-R were abated in good faith.

6. The Secretary and Emery further stipulate that Emery was a large mine operator and assessment of a penalty in this case will not affect its ability to continue in business.

7. To permit the presiding judge to evaluate Emery's history of violations, the Secretary has submitted a computer listing of violations issued at Emery's Deer Creek Mine for the two-year period terminating on October 21, 1985. Emery stipulates to the accuracy of such a list.

8. The parties request that the presiding judge render a decision assessing appropriate civil penalties in this case.

Discussion

The statutory mandate to access civil penalties is contained in 110(i) of the Act, now codified at 30 U.S.C.A. | 820(i).

In considering the record I find that these violations occurred as a result of an inspection on October 22, 1985. The computer printout indicates that the operator was assessed 518 violations in the two-year period ending October 21, 1985. The evidence accordingly establishes that the operator has a high adverse prior history. However, the number of violations has decreased considerably from the 1210 violations that were assessed before October 22, 1983.

Inasmuch as Emery is a large operator, it appears that the penalty is appropriate in relation to the size of the company. In addition, the penalties will not affect the company's ability to continue in business.

In connection with WEST 86Ä35-R, the company should have known of the violative condition because supervisors traveled through the area where the deteriorated roof was located. Further, the violative condition existed for at least a week, possibly months. These factors establish the operator's negligence.

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In connection with WEST 86Ä36-R, the violative condition of the large loose rib in the switching area existed over a period of months. The area itself should have been examined by a preshift examiner. On balance, the operator was negligent in failing to remedy the obvious violative condition.

The gravity in each case is apparent. In WEST 86Ä35-R the areaway was used daily by over 200 miners. If the roof failed in the immediate area, miners could have been killed or injured. In addition, miners could have been trapped inby any fallen rock. On balance, I conclude the gravity of the violation is relatively high.

In connection with WEST 86Ä36-R, the gravity is likewise high. If the large rib came down it could crush any miners in the immediate area.

It is to the operator's credit that it immediately abated the violative condition.

In view of the statutory criteria, I deem the penalties set forth in the order of this decision are appropriate civil penalties for the violations.

Conclusions of Law

Based on the record and the stipulation of the parties, the following conclusions of law are entered:

1. The Commission has jurisdiction to decide this case.

2. A civil penalty should be assessed for the violation of Citation 2503818.

3. A civil penalty should be assessed for the violation of Citation 2503819.

ORDER

Based on the foregoing stipulation and conclusions of law I enter the following order:

1. A civil penalty of $1500 is assessed for the violative condition alleged in Citation 2503818.

2. A civil penalty of $500 is assessed for the violative condition alleged in Citation 2503819.

John J. Morris
Administrative Law Judge
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
~FOOTNOTE_ONE a1. see an amended page 1 of this decision on page 716 of this issue