Secretary of Labor (MSHA) v. Kitt Energy Corporation (ALJ decision, December 20, 1983)

Plain-English summary

MSHA charged Kitt Energy Corporation with two violations concerning handrails on a slope used as an escapeway. After the parties reviewed videotapes of miners using the slope, they agreed the cited violations had not occurred and asked to withdraw the penalty petitions. Judge Joseph B. Kennedy agreed that the citations were improperly issued and properly vacated. He granted the withdrawal motions and dismissed both proceedings. No penalty was assessed.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.1704, concerning safe travel through an escapeway.
• Outcome: Both citations vacated and penalty petitions withdrawn; cases dismissed without penalty.
• Key point: Video evidence of miners using the slope led the parties and the judge to conclude that the charged handrail violations had not occurred.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. KITT ENERGY
DDATE:
198312201
TTEXT:
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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 82-363
PETITIONER
A.C. No. 46-04168-03503

v. Docket No. WEVA 83-64
A.C. No. 46-04168-03528
KITT ENERGY CORPORATION,
RESPONDENT
Kitt No. 1 Mine

DECISION

Before: Judge Kennedy

The parties move for approval of a motion withdrawing the captioned penalty petitions on the ground that a review of the videotapes of the condition cited shows the violation charged did not, in fact, occur.

In what came to be known as the case of the "slippery slopes," MSHA charged two violations 75.1704 on the ground that the hand rails on a slope that served as an escapeway were not maintained so as to insure safe passage of the miners at all times. Because the violations were considered "nit-picks," MSHA proposed its usual "wrist-slap" penalty of $20. When the matters, together with others, came on for a prehearing conference, the trial judge suggested that before the parties put the taxpayers and stockholders to further inordinate expense over what both parties conceded were trivial violations they attempt to resolve the matter by making videotapes of miners using the slopes in question to determine the difficulty, if any, involved in climbing through the areas.

The parties agreed to this and after accomplishing the "view" agreed the citations were improvidently issued and should be vacated. This having been accomplished the instant motion followed. I conclude the violations charged did not, in fact, occur and that the citations were, therefore, properly vacated.
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Accordingly, it is ORDERED that the motions to withdraw be, and hereby are, GRANTED and the captioned matters DISMISSED.

Joseph B. Kennedy
Administrative Law Judge