Energy West Mining Company

Plain-English summary

Energy West Mining Company conceded a respirable-dust violation at its Cottonwood Mine after samples averaged 2.2 milligrams per cubic meter, above the 2.0 milligram limit in 30 C.F.R. § 70.100(a). The Commission had affirmed the failure-to-abate order but vacated the original $3,000 penalty because the earlier decision did not explain how the miners' airstream helmets affected gravity. On remand, the parties stipulated that the protective equipment made the violation low gravity and agreed on an $850 penalty. Judge Richard W. Manning accepted the stipulation, modified the citation to low gravity, and ordered Energy West to pay $850 within 40 days.

Decision snapshot

• Cited standard: 30 C.F.R. § 70.100(a)
• Outcome: The citation's gravity was modified to low, and the civil penalty was reduced to $850.
• Key point: Evidence that protective equipment substantially reduced miners' exposure supported a lower-gravity finding and a reduced penalty on remand.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268

                          June 3, 1996

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 93-169
Petitioner : A.C. No. 42-01994-03614
:
v. :
: Cottonwood Mine
ENERGY WEST MINING COMPANY, :
Respondent :

                   DECISION AFTER REMAND

Before: Judge Manning

 This case is before me pursuant to section 105(d) of the

Federal Mine Safety and Health Act of 1977, 30 U.S.C. ' 801 et
seq. (1988)("Mine Act") following a remand from the Commission.
18 FMSHRC 565 (April 1996). In its decision, the Commission af-
firmed the determination of former Commission Administrative Law
Judge John J. Morris that an inspector of the Department of
Labor's Mine Safety and Health Administration ("MSHA") did not
abuse his discretion in issuing a failure to abate order of
withdrawal under section 104(b) of the Mine Act. The Commission
vacated Judge Morris's penalty assessment, however, and remanded
the case for reconsideration of that issue. Id. at 571.

 The citation involved in this case states that respirable

dust samples taken by Energy West Mining Company ("Energy West")
showed an average concentration of 2.2 milligrams of respirable
dust per cubic meter of air, in violation of 30 C.F.R.
' 70.100 (a). The health standard requires that the average
concentration be maintained at or below 2.0 milligrams. Energy
West conceded that it violated section 70.100(a) as alleged in
the citation but disputed that the violation was significant and
substantial ("S&S") and challenged the failure to abate order
issued by the MSHA inspector.

 At the hearing, Judge Morris granted the Secretary's motion

to amend the citation to delete the S&S allegation based on evi-
dence that the miners exposed to the respirable dust were wearing
airstream helmets. 16 FMSHRC 835, 837 (April 1994). The judge
found that these helmets "provid[ed] a virtually dust-free air

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supply to miners, reducing respirable dust exposure to insignifi-
cant levels." Id. at 843. The condition described in the cita-
tion was not abated within the time set in the citation. The
inspector determined that an extension of the abatement time was
not warranted and he issued a failure to abate order. The judge
determined that the inspector did not abuse his discretion in
issuing the failure to abate order. Id. at 844. Judge Morris
assessed a civil penalty of $3,000 based on his finding that the
gravity of the violation was high, given the risk of pneumoconio-
sis and that such violations are generally considered to be S&S.
Id. at 850.

 In its decision, the Commission affirmed the judge's deci-

sion with respect to the failure to abate order. 18 FMSHRC at

571. The Commission noted that the judge granted the Secretary's
     motion to delete the S&S allegation because the miners were wear-
     ing airstream helmets and were thereby provided with a virtually
     dust-free air supply. Id. The Commission stated that the judge
     did not indicate whether he considered this evidence when he
     determined that the violation was of high gravity or when he
     assessed the civil penalty. Id. On that basis, the Commission
     vacated the penalty and remanded the case for consideration of
     that evidence and the assessment of an appropriate civil penalty.

     This case was assigned to me on April 25, 1996. By order
     dated April 29, I asked the parties to confer for the purpose of
     reaching agreement on the narrow issue remanded by the Commis-
     sion. In response, the parties entered into the following
     stipulation:

           l. The gravity of the violation was low
      because the miners affected were wearing per-
      sonal protective equipment which provided "a
      virtually dust-free air supply to miners, re-
      ducing respirable dust exposure to insignifi-
      cant levels." For this reason, the Secretary
      did not consider the violation significant
      and substantial.
     
           2. Since the gravity of the violation
      was low, and the findings in the Judge's de-
      cision issued in April 1994 about the other
      statutory factors for assessment of the civil
      penalty for the violation were not at issue
      before the Commission and are not at issue on
      remand, an appropriate civil penalty for
      Citation 3850746 is $850.00.
     

Joint Stipulation at 2 (citations omitted). The parties stated

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that they entered into the agreement, in part, to conserve the
resources of the Commission and the parties, and they request
that I issue a final decision assessing a civil penalty of
$850.00 without further proceedings.
Based on my consideration of the decisions of Judge Morris
and the Commission, the record in this case, and the parties'
joint stipulation, I concluded that the proffered agreement
contained in the joint stipulation is appropriate under the
criteria set forth in section 110(i) of the Mine Act.

 Accordingly, the parties' proposal set forth in their Joint

Stipulation is ACCEPTED, the citation is MODIFIED to show that
the gravity of the violation was low, and Energy West Mining
Company is ORDERED TO PAY the Secretary of Labor the sum of
$850.00 within 40 days of the date of this decision.

                         Richard W. Manning
                         Administrative Law Judge

Distribution:

Margaret A. Miller, Esq., Office of the Solicitor, U.S. Depart-
ment of Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
(Certified Mail)

Timothy M. Biddle, Esq., CROWELL & MORING, 1001 Pennsylvania
Ave., NW, Washington, DC 20004-2595 (Certified Mail)

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