Secretary of Labor (MSHA) v. Clay Kittanning Coal Co. (ALJ decision, May 17, 1982)

Plain-English summary

MSHA brought two penalty cases against Clay Kittanning Coal Co. over violations committed at the Gail Mine by a contract miner. The lessee-operator argued that the contractor alone was responsible and raised financial hardship. Judge Joseph B. Kennedy concluded that a lessee-operator could be liable for its contractor’s violations and approved the parties’ settlement after an independent review. He ordered payment of $3,570 by April 30, 1983, with dismissal of both cases conditioned on payment.

Decision snapshot

• Cited standards: None specified in this settlement order.
• Outcome: Two penalty cases settled for $3,570, due by April 30, 1983.
• Key point: A lessee-operator’s use of a contractor did not by itself remove responsibility for violations at the mine.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. CLAY COAL
DDATE:
19820517
TTEXT:
~911

Federal Mine Safety and Health Review Commission Office of Administrative Law Judges

SECRETARY OF LABOR,
Civil Penalty Proceedings
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket No. WEVA 81-397
PETITIONER A/O No. 46-05653-03009 v.
Docket No. WEVA 81-433
CLAY KITTANNING COAL CO.,
A/O No. 46-05653-03010V
RESPONDENT
Gail Mine

DECISION AND ORDER

These matters came on for an evidentiary hearing that, with the consent of the parties, was converted to a settlement conference in Beckley, West Virginia on April 21, 1982.

The operator, who appeared pro se, initially took the position that he was not responsible for the violations charged because he was the lessee of the mineral rights and had contracted with a third party to extract the coal. There was no dispute about the fact that the contract miner, who had never been identified as the operator, had committed the violations. Nor was there any dispute about the fact that Mr. Ray, the lessee-operator, had worked closely with his contract miner. Mr. Ray was understandably chagrined over his claim that he was being held monetarily responsible for violations committed by a contract miner and that the contractor had never paid the royalty due under the contract. On the other hand, Mr. Ray conceded he was responsible for employing the contractor and that the contractor was not a safe operator.

I told Mr. Ray that under the statute as both originally written and amended a lessee-operator is vicariously liable for violations committed by his contractors. Mitigating circumstances may be shown by such operators but under the circumstances presented I could see no basis for diminishing Mr. Ray's responsibility. (FOOTNOTE 1) ~912
Mr. Ray also asserted an inability to pay the penalties because of straitened financial circumstances. It developed, however, that these circumstances are expected to improve considerably over the next year. On the basis of these considerations, Mr. Ray and the solicitor negotiated a stipulation for settlement which is the basis for the present motions.

Based on an independent evaluation and de novo review of the circumstances, I find the settlement proposed is in accord with the purposes and policy of the Act.

Accordingly, it is ORDERED that the motions to approve settlement be, and hereby are, APPROVED. It is FURTHER ORDERED that the operator pay the amount of the settlement agreed upon, $3,570, on or before April 30, 1983 and that subject to payment the captioned matters be DISMISSED.

Joseph B. Kennedy
Administrative Law Judge
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
~FOOTNOTE_ONE
In its decision of April 27, 1982 in the Phillips Uranium case the Commission held that the Secretary's refusal to proceed against a construction contractor either directly or by impleading the independent contractor was an abuse of prosecutorial discretion that required the sanction of dismissal of the charges against the owner-operator. The Commission was obviously displeased with the rigidity in the solicitor's litigating posture. I do not believe the Commission intended to hold that owner-operators or lessee-operators are no longer jointly and severally liable for violations committed by their contractors.