Birchfield Mining Incorporated (ALJ decision, February 2, 1989)

Plain-English summary

Birchfield Mining Incorporated was cited for failing to complete and record a required pre-shift examination at No. 1 Mine. Judge Gary Melick had previously assessed a $400 civil penalty for the serious violation. On remand, the Commission's finding that the violation was not significant and substantial required a corresponding reduction in the penalty. The judge ordered Birchfield to pay $300 within 30 days.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.303(a)
• Outcome: The violation remained established, but the civil penalty was reduced from $400 to $300.
• Key point: A finding that a violation was not significant and substantial reduced the penalty when gravity had been a significant part of the original assessment.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. BIRCHFIELD MINING
DDATE:
19890202
TTEXT:

Page 2

~198
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. WEVA 87-272
PETITIONER
A.C. No. 46-07273-03501

v. No. 1 Mine

BIRCHFIELD MINING INCORPORATED
RESPONDENT

DECISION

Appearances: Mary K. Spencer, Esq., Office of the Solicitor, U.S. Department of Labor, Arlington, Virginia for Petitioner;
William D. Stover, Esq., Beckley, West
Virginia for Respondent.

Before: Judge Melick

This case is before me upon remand by a majority of the Commission to determine whether its findings that the violation at issue was not "significant and substantial" would affect the amount of civil penalty imposed below.

In the decision below, 9 FMSHRC 2209 (1987), it was found that the failure to complete and record a pre-shift examination required by 30 C.F.R. 75.303(a) was a "serious" violation and warranted a civil penalty of $400. The Commission majority found however that the violation did not contribute "a measure of danger to safety" and in essence did not constitute a serious hazard. Since the gravity determination below was a significant component in the amount of penalty established, there must now be a corresponding reduction in penalty. Accordingly considering the criteria under section 110(i) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq., I now direct that a penalty of $300 be paid.

Page 3

~199
ORDER

Birchfield Mining Incorporated is hereby directed to pay a civil penalty of $300 within 30 days of the date of this decision.

Gary Melick
Administrative Law Judge
(703) 756-6261