Skelton Incorporated

Plain-English summary

MSHA cited Skelton Incorporated after the operator filed a required quarterly production report late for its El Jay Mine in Colorado. The operator did not appear at the hearing. Judge Michael A. Lasher, Jr. found that 30 C.F.R. § 50.30 required the report within 15 days after the end of the calendar quarter and that the late filing established the violation. He found low negligence, no serious injury risk, and no evidence supporting a reduction for inability to pay. The judge affirmed the citation and assessed a $20 civil penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 50.30.
• Outcome: Citation No. 2640273 was affirmed, with a $20 civil penalty.
• Key point: A late quarterly production report violated the reporting requirement even though the report was eventually filed.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. SKELTON
DDATE:
19890320
TTEXT:

~365
Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEST 88-304-M
PETITIONER A.C. No. 05-03985-05509

       v.                            El Jay

SKELTON INCORPORATED,
RESPONDENT

                         DECISION

Appearances: Robert J. Murphy, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner.

Before: Judge Lasher

 This matter arises upon the filing of a proposal for penalty

by the Secretary of Labor on September 30, 1988, seeking
assessment of a $20 penalty against Respondent for a violation of
30 C.F.R. Section 50.30, which standard provides:

      "(a) Each operator of a mine in which an individual
      worked during any day of a calendar quarter shall
      complete a MSHA form 7000-2 in accordance with the
      instructions and criteria in Section 50.30-1, et
      cetera.

      (b) Each operator of a coal mine in which an individual
      worked during any day of a calendar quarter shall
      report coal production on Form 7000-2."

 At the hearing in Denver, Colorado, on February 13, 1989,

Petitioner, as above noted, was represented by counsel.
Respondent, although receiving actual and legal notification
thereof, did not appear at the hearing or notify the presiding
Judge or counsel of Petitioner of its intent to be absent
therefrom.

 Petitioner submitted the testimony of Inspector Roy

Trujillo, who issued the subject Citation No. 2640273 on June 6,
1988, and presented documentary evidence which established its
position as to the occurrence of the violation and the mandatory
penalty assessment criteria set forth in the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. Section 815 (1977). (Based
thereon, this bench decision was issued at close of hearing).

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Inspector Trujillo, a 15 year veteran with MSHA, testified that
the subject El Jay Mine of Respondent was, to his knowledge, in
operation at the time the citation was issued, and that after
examining computer data on June 6, 1988, he determined that the
required form had not been filed by Respondent. He then called
Ruth Gray, Respondent's secretary, and advised her that he would
have to issue a citation.

 It appeared that the report in question ultimately arrived,

but that the same arrived late. Since Section 50.30 requires the
same to be filed within 15 days after the end of each calendar
quarter, this constitutes the violation which is here found to
have occurred.

 Based on evidence of record, and disclosed on the face of

the citation it is further found that Respondent is the operator
of a mine located in San Miguel County, Colorado, with a history
(Exhibit P-1) of six previous violations during the pertinent
two-year period preceding June 6, 1988. Four of the total of
thirteen prior violations committed by Respondent prior to 1986
were record keeping violations. The proposed penalty of $20 is
found appropriate and is here assessed on the basis that this
violation is determined to involve only a "low" degree of
negligence, is not serious, and since there is no contention that
Respondent did not proceed in good faith to promptly abate the
same upon notification thereof.

 The burden of establishing inability to pay a penalty at a

given monetary level is on the Respondent mine operator in a
penalty proceeding and there is no such evidence in this record.
In any event, in view of the token penalty of $20 being assessed
here and opinion evidence from the Inspector that such a penalty
would not jeopardize Respondent's ability to continue in
business, it is concluded that there is no economic basis for
reduction of the penalty sought.

                           ORDER

   Citation No. 2640273 is affirmed in all respects.

 Respondent, if it has not previously done so, shall pay the

Secretary of Labor within 30 days the sum of $20 as and for a
civil penalty herein.

                              Michael A. Lasher, Jr.
                              Administrative Law Judge