Shell Energy Company, Inc. (ALJ decision, March 10, 1992)

Plain-English summary

Shell Energy admitted that a continuous miner operator advanced 10 feet beyond permanent roof supports in violation of the mine's approved roof-control plan and 30 C.F.R. § 75.200. The company also admitted that the violation was significant and substantial and resulted from unwarrantable failure, but argued that the proposed $600 penalty was too high because the mine had been shut down and market conditions were difficult. Judge Gary Melick found that the company had resumed mining and that paying $600 would not affect its ability to stay in business. He ordered Shell Energy to pay the full $600 penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.200
• Outcome: The admitted significant-and-substantial, unwarrantable-failure violation was affirmed with a $600 penalty.
• Key point: A penalty is not reduced based on business hardship when the evidence shows that payment will not affect the operator's ability to continue in business.

Full text (FMSHRC public release)

CCASE:
MSHA V. SHELL ENERGY
DDATE:
19920310
TTEXT:

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SECRETARY OF LABOR,
: CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 91-58 Petitioner : A.C. No. 46-07081-03528
v. :
: Victoria No. 1 Mine
SHELL ENERGY COMPANY, INC., :
Respondent :

DECISION

Appearances: Ronald Gurka, Esq., Office of the Solicitor, U.S.
Department of Labor, Arlington, Virginia, for the Petitioner;
Frank Staud, Shell Energy Company, Inc., Shinnston, West Virginia, for the Respondent.

Before: Judge Melick

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., the "Act," to challenge Citation No. 3312037, issued to Shell Energy Company, Inc., (Shell Energy) by the Secretary of

___
1/ Section 104(d)(1) reads as follows:
"(d)(1) If, upon any inspection of a coal or other mine, an authorized representative of the Secretary finds that there has been a violation of any mandatory health or safety standard, and if he also finds that, while the conditions created by such violation do not cause imminent danger, such violation is of such nature as could significant and substantially contribute to the cause and effect of a coal or other mien safety or health hazard, and if he finds such violation to be caused by an unwarrantable failure of such operator to comply with such mandatory health or safety standards, he shall include such finding in any citation given to the operator under this Act. If, during the same inspection or any subsequent inspection of such mine within 90 days after the issuance of such citation, an authorized representative of the Secretary finds another violation of any mandatory health or safety standard and finds such violation to be also caused by an unwarrantable failure of such operator to so comply, he shall forthwith issue an order requiring the operator to cause all persons in the area affected by such violation,

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alleges a violation of the mandatory standard at 30 C.F.R. 75.200 and charges as follows

A 30 feet [sic] cut of coal was mined out of the 2nd split off of the No. 3 Pillar block on the 001 section, resulting in Don Henderson continuous miner operator being 10 feet beyond permanent roof-supports.
The approved roof-control states, workman [sic] shall not advance inby roof-bolts except to install temporary supports. This condition should have been known by the mine foreman because he made a preshift examination of the working places before the start of the shift.
Randy Moore, Mine foreman.

Respondent Shell Energy admits inter alia, that there was a violation of the cited standard, that the violation was "significant and substantial" and that it was the result of its "unwarrantable failure." Indeed it is quite clear that the admitted violation was extremely serious and the result of operator negligence. Shell Energy argues only that a $600 penalty as proposed by the Secretary is too high.

More particularly, in its answer to the petition for assessment of civil penalty, Respondent claimed that (1) the "Victoria Mine is shut down and no longer in operation" and (2) "due to market conditions and other extenuating circumstances, the amount of the fine would affect our ability to operate in the future."

At hearing, however, Shell Energy representative Frank Staud acknowledged that the payment of the proposed $600 penalty would not cause Shell Energy to go out of business. Indeed Staud testified that "if $600 is going to shut me down, I shouldn't even be in business" and maintained only that he would "rather give that $600 to a creditor, somebody that I owe money to and needs it . . . ." At hearing Staud also testified that his company has resumed its mining business.

Under section 110(i), in assessing the amount of a civil monetary penalty, the Commission must consider, among other things, "the effect [of the penalty] on the operator's ability to continue in business." Since the parties have stipulated and the evidence clearly demonstrates that payment of the proposed

fn. 1 (continued)
except those persons referred to in subsection (c) to be withdrawn from, and to be prohibited from entering, such area until an authorized representative of the Secretary determines that such violation has been abated."

Labor pursuant to section 104(d)(1) of the Act. (Footnote 1)/

The citation

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penalty would not affect Shell Energy's ability to continue in business, I find no basis for a reduction of the proposed penalty. Considering the undisputed evidence, it is clear that the proposed penalty of $600 is indeed appropriate, if not low, for the corresponding serious and negligent violation in this case.

ORDER

Shell Energy Company, Inc., is directed to pay a civil penalty of $600 for the violation charged in Citation No. 3312037 within 30 days of the date of this decision.

Gary Melick
Administrative Law Judge

Distribution:

Ronald Gurka, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 (Certified Mail)

Mr. Frank Staud, Shell Energy Company, Inc., 57 Rebecca Street, Shinnston, WV 26431 (Certified Mail)

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