Emery Mining Corporation

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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~712

          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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~713
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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~714
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