.
ENERGY WEST MINING COMPANY
June 3, 1996
WEST 93-169
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
June 3, 1996
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 93-169
Petitioner : A.C. No. 42-01994-03614
:
v. :
: Cottonwood Mine
ENERGY WEST MINING COMPANY, :
Respondent :
DECISION AFTER REMAND
Before: Judge Manning
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. (1988)("Mine Act") following a remand from the
Commission. 18 FMSHRC 565 (April 1996). In its decision, the
Commission affirmed the determination of former Commission
Administrative Law Judge John J. Morris that an inspector of
the Department of Labor's Mine Safety and Health Administration
("MSHA") did not abuse his discretion in issuing a failure to
abate order of withdrawal under section 104(b) of the Mine
Act. The Commission vacated Judge Morris's penalty assessment,
however, and remanded the case for reconsideration of that issue.
Id. at 571.
The citation involved in this case states that respirable
dust samples taken by Energy West Mining Company ("Energy West")
showed an average concentration of 2.2 milligrams of respirable
dust per cubic meter of air, in violation of 30 C.F.R. � 70.100(a).
The health standard requires that the average concentration be
maintained at or below 2.0 milligrams. Energy West conceded
that it violated section 70.100(a) as alleged in the citation
but disputed that the violation was significant and substantial
("S&S") and challenged the failure to abate order issued by the
MSHA inspector.
At the hearing, Judge Morris granted the Secretary's motion
to amend the citation to delete the S&S allegation based on
evidence that the miners exposed to the respirable dust were
wearing airstream helmets. 16 FMSHRC 835, 837 (April 1994).
The judge found that these helmets "provid[ed] a virtually
dust-free air supply to miners, reducing respirable dust
exposure to insignificant levels." Id. at 843. The condition
described in the cita-tion was not abated within the time set
in the citation. The inspector determined that an extension
of the abatement time was not warranted and he issued a failure
to abate order. The judge determined that the inspector did
not abuse his discretion in issuing the failure to abate order.
Id. at 844. Judge Morris assessed a civil penalty of $3,000
based on his finding that the gravity of the violation was high,
given the risk of pneumoconiosis and that such violations are
generally considered to be S&S. Id. at 850.
In its decision, the Commission affirmed the judge's
decision with respect to the failure to abate order. 18
FMSHRC at 571. The Commission noted that the judge granted
the Secretary's motion to delete the S&S allegation because
the miners were wear-ing airstream helmets and were thereby
provided with a virtually dust-free air supply. Id. The
Commission stated that the judge did not indicate whether
he considered this evidence when he determined that the
violation was of high gravity or when he assessed the civil
penalty. Id. On that basis, the Commission vacated the
penalty and remanded the case for consideration of that
evidence and the assessment of an appropriate civil penalty.
This case was assigned to me on April 25, 1996. By order
dated April 29, I asked the parties to confer for the purpose
of reaching agreement on the narrow issue remanded by the
Commission. In response, the parties entered into the following
stipulation:
l. The gravity of the violation was low
because the miners affected were wearing per-
sonal protective equipment which provided "a
virtually dust-free air supply to miners, re-
ducing respirable dust exposure to insignifi-
cant levels." For this reason, the Secretary
did not consider the violation significant
and substantial.
2. Since the gravity of the violation
was low, and the findings in the Judge's de-
cision issued in April 1994 about the other
statutory factors for assessment of the civil
penalty for the violation were not at issue
before the Commission and are not at issue on
remand, an appropriate civil penalty for
Citation 3850746 is $850.00.
Joint Stipulation at 2 (citations omitted). The parties stated
that they entered into the agreement, in part, to conserve the
resources of the Commission and the parties, and they request
that I issue a final decision assessing a civil penalty of
$850.00 without further proceedings.
Based on my consideration of the decisions of Judge Morris
and the Commission, the record in this case, and the parties'
joint stipulation, I concluded that the proffered agreement
contained in the joint stipulation is appropriate under the
criteria set forth in section 110(i) of the Mine Act.
Accordingly, the parties' proposal set forth in their Joint
Stipulation is ACCEPTED, the citation is MODIFIED to show that
the gravity of the violation was low, and Energy West Mining
Company is ORDERED TO PAY the Secretary of Labor the sum of
$850.00 within 40 days of the date of this decision.
Richard W. Manning
Administrative Law Judge
Distribution:
Margaret A. Miller, Esq.,
Office of the Solicitor,
U.S. Department of Labor,
1999 Broadway, Suite 1600,
Denver, CO 80202-5716
(Certified Mail)
Timothy M. Biddle, Esq.,
CROWELL & MORING,
1001 Pennsylvania Ave., NW,
Washington, DC 20004-2595
(Certified Mail)
RWM