Secretary of Labor (MSHA) v. Energy Coal Corporation (ALJ decision, May 13, 1983)

Plain-English summary

The parties sought to settle five violations at Energy Coal's No. 14 Mine. The judge had rejected their original $148 proposal because it gave too little weight to two backup alarm violations. He reasoned that a functioning alarm protects workers from foreseeable contact with mobile equipment even without proof that a particular miner had already been endangered. The parties raised the penalties for those two violations to $200 each, producing a revised $460 total. The judge approved the revised settlement and ordered payment by June 3, 1983, with dismissal conditioned on payment. This order does not identify the numbered standards or describe the other three violations.

Decision snapshot

• Cited standards: Backup alarms are discussed, but no numbered safety standard is given.
• Outcome: Five violation settlement approved for $460; dismissal subject to payment.
• Key point: The judge required higher penalties for two backup alarm violations before approving the settlement.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. ENERGY COAL
DDATE:
19830513
TTEXT:
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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. WEVA 83-62
PETITIONER
A/O No. 46-05793-03504

v. Mine No. 14

ENERGY COAL CORPORATION,
RESPONDENT

DECISION

The parties move for approval of their amended motion to approve settlement of the five violations charged. The original motion (in the amount of $148.00) was denied by the trial judge on the ground that the amounts proposed for the backup alarm violations were insufficient to insure future compliance.

The widely shared view that backup alarm violations are not significant and substantial in the absence of a showing that miners were actually endangered by the unsafe condition is erroneous. In Brown & Root v. OSHRC, 639 F.2d 1289, 1294 (5th Cir. 1981), the court held the Secretary need not prove a specific employee was actually endangered by the operator's failure to provide an operable backup alarm, "but only that it was reasonably certain that some employee was or would be exposed to that danger." Thus, if the potential for contact with a piece of mobile equipment is reasonably forseeable a serious injury is probable. Because the consequences of such a preventable condition are so grave, a penalty of $20.00 fails to reflect the proper regulatory concern. As the court noted: "The goal of the Act is to prevent the first accident, not to serve as a source of consolation for the first victim or his survivors. Hence, no proof of specific instances where employees were exposed to the hazardous condition is necessary to support a finding of violation." Id.

Accordingly, and in the exercise of his power and duty to ensure that settlements are in accord with the purposes and policy of the Act, the trial judge recommended the penalties for the two backup alarm violations be increased from $68 and $20 respectively to $200 each. The amended motion accepts this.
~888
Based on an independent evaluation and de novo review of the circumstances, I now find the settlement proposed is in accord with the purposes and policy of the Act.

It is ORDERED, therefore, that the motion to approve settlement be, and hereby is, GRANTED. It is FURTHER ORDERED that the operator pay the settlement agreed upon, $460.00, on or before Friday, June 3, 1983, and that subject to payment the captioned matter be DISMISSED.

Joseph B. Kennedy
Administrative Law Judge