Consolidation Coal Company

Plain-English summary

Consolidation Coal Company contested three citations for accident reports that omitted descriptions of steps taken to prevent similar occurrences, as required by 30 C.F.R. § 50.11(b)(8). Judge George A. Koutras found that the omissions were technical violations and that the operator's mitigating circumstances were plausible and reasonable. He approved the parties' settlement, affirmed the citations, reduced each proposed penalty from $50 to $20, and ordered a total payment of $60. The matter was to be dismissed after payment.

Decision snapshot

• Cited standard: 30 C.F.R. § 50.11(b)(8)
• Outcome: Three citations were affirmed under the settlement, the penalties were reduced to $20 each, and a total $60 civil penalty was assessed.
• Key point: An accident report must include the required prevention-step information even when the omission is treated as a technical violation.

Full text (FMSHRC public release)

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 92-1049
Petitioner : A.C. No. 46-01867-03929
v. :
: Blacksville No. 1
CONSOLIDATION COAL COMPANY, :
Respondent :

                           DECISION

Appearances: Wanda Johnson, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
the Petitioner;
Daniel E. Rogers, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for the
Respondent.

Before:

                  Statement of the Case

 This is a civil penalty proceeding filed by the petitioner

against the respondent pursuant to section 110(a) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. 820(a), seeking
civil penalty assessments for three (3) alleged violations of the
mandatory accident reporting requirements found in 30 C.F.R.
50.11(b)(8). The respondent filed a timely answer and contest
and in response to a prehearing order, the parties informed me
that they were unable to agree to a settlement of the contested
citations and that a hearing would be required. Accordingly, the
matter was consolidated with several other cases involving these
same parties, and a hearing was held in Morgantown, West
Virginia, on June 15, 1993.

                          Discussion

 This case concerns three (3) section 104(a) non-"S&S"

citations (Nos. 3718403, 3718404, 3718405), issued by MSHA
Inspector Joseph A. Migaiolo on May 12, 1992, charging the
respondent with alleged violations of mandatory accident,
injuries, and illness reporting standard 30 C.F.R. 50.11(b)(8).
The citations were issued in the course of an audit of mine
records conducted by the inspector when he found that three
accident investigation reports prepared by the respondent
concerning three lost workday accidents that occurred on
January 1 and 19, 1989, and September 21, 1989, did not include

"a description of steps taken to prevent a similar occurrence in
the future", as required by the cited section 50.11(b)(8).

 In the course of the hearing the parties informed me that

after further discussions and negotiations, they proposed to
settle the disputed citations, and they presented arguments on
the record in support of their proposals (Tr. 14-16).

 In support of the proposed settlements, the parties

incorporated by reference the previously submitted prehearing
responses which included information concerning the six statutory
civil penalty criteria found in section 110(i) of the Act,
summaries of the testimony of their respective witnesses,
jurisdictional stipulations, and summaries of the position taken
by the parties with respect to the alleged violations.

 In further support of the proposed settlement, petitioner's

counsel agreed that the cited conditions were "technical
violations" that occurred several years ago, but were only
discovered in the course of the audit conducted by the inspector.
Respondent's counsel pointed out that the required accident
reports were in fact prepared, but he took the position that due
to the repetitive nature of the reported injuries, it would have
been repetitive and unnecessary to make recommendations
concerning future preventive measures.

 I take note of the fact that section 50.11(b), requires the

submission of nine (9) items of information concerning each
reportable occupational injury, and on the facts here presented
the respondent was cited for failing to include information
concerning item (8) which requires a description of the steps
taken by the respondent to prevent similar occurrences. Upon
review of the citations, and the pretrial submissions by the
parties, I agree with the petitioner's characterization of the
violations as "technical in nature", and although the required
information was not submitted as part of the respondent's
accident reports, I find the mitigating circumstances advanced by
the respondent both plausible and reasonable.

 The parties agreed that the citations should be affirmed as

issued, and they agreed that the initial proposed civil penalty
assessments of $50 for each of the non-"S&S" citations should be
modified to $20 for each citation in compliance with the
applicable MSHA penalty assessment criteria and procedures in
effect at the time the citations were issued. The respondent
agreed to pay the modified assessments.

                Findings and Conclusions

 After careful consideration of the pleadings, arguments, and

submissions in support of the proposed settlement, and pursuant
to the requirements of Commission Rule 31, 29 C.F.R. 2700.31,

the proposed settlement was approved from the bench, and my
decision is herein reaffirmed (Tr. 16).

                          ORDER

 The respondent IS ORDERED to pay civil penalty assessments

in the amount of sixty-dollars ($60), ($20 for each citation), in
satisfaction of the violations in question. Payment is to be
made to the petitioner (MSHA) within thirty (30) days of this
decision and order, and upon receipt of payment, this matter is
dismissed.

                            George A. Koutras
                            Administrative Law Judge

Distribution:

Wanda Johnson, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Blvd., Rm. 516, Arlington, VA 22203
(Certified Mail)

Daniel E. Rogers, Esq., Consolidation Coal Company, Consol Plaza,
1800 Washington Road, Pittsburgh, PA 15241-1421 (Certified
Mail)

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