CCASE:

SOL (MSHA V. SHAMROCK COAL

DDATE:

19790321

TTEXT:
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 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. BARB 78-495-P

 PETITIONER (A/O No. 02502-02021)

 v. No. 18 Mine

SHAMROCK COAL COMPANY,

 RESPONDENT

 DECISION

Appearances: John H. O'Donnell, Attorney, Office of the Solicitor,

 Department of Labor, for Petitioner;

 Neville Smith, Attorney, Manchester, Kentucky, for

 Respondent.

Before: Judge Littlefield

Introduction

 This is a proceeding for assessment of civil penalties

against the Respondent and is governed by section 110(a) of the

Federal Mine Safety and Health Act of 1977 (1977 Act), P.L.

95-164 (November 9, 1977), and section 109(a)(1) of the Federal

Coal Mine Health and Safety Act of 1969 (1969 Act), P.L. 91-173

(December 30, 1969). Section 110(a) provides as follows:

 The operator of a coal or other mine in which a

 violation occurs of a mandatory health or safety

 standard or who violates any other provision of this

 Act, shall be assessed a civil penalty by the Secretary

 which penalty shall not be more than $10,000 for each

 such violation. Each occurrence of a violation of a

 mandatory health or safety standard may constitute a

 separate offense.

 Section 109(a)(1) provides as follows:

 The operator of a coal mine in which a violation occurs

 of a mandatory health or safety standard or who

 violates any other provision of this Act, except the

 provisions of title 4, shall be assessed a civil

 penalty by the Secretary
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 under paragraph (3) of this subsection which penalty shall

 not be more than $10,000 for each such violation. Each

 occurrence of a violation of a mandatory health or safety

 standard may constitute a separate offense. In determining

 the amount of the penalty, the Secretary shall consider the

 operator's history of previous violations, the appropriate-

 ness of such penalty to the size of the business of the

 operator charged, whether the operator was negligent, the

 effect on the operator's ability to continue in business,

 the gravity of the violation, and the demonstrated good

 rapid compliance after notification of a violation.

Petition

 On June 23, 1978, the Mine Safety and Health Administration

(MSHA),(FOOTNOTE 1) through its attorney, filed a petition for

assessment of civil penalties charging five alleged violations of

the Act.

Answer

 On July 21, 1978, Respondent filed a detailed response to

the allegations and requested a hearing thereon.

Tribunal

 A hearing was held in Knoxville, Tennessee, on February 14,

1979. Both MSHA and Shamrock Coal Company were represented by

counsel (Tr. 4-5).

Evidence

 The Judge held a prehearing conference before bringing the

hearing to order and heard preliminary discussions bearing on the

issues on the part of counsel for both parties.

 The Judge, after hearing all evidence, studying the record,

reviewing the exhibits, giving sympathetic regard to mitigating

circumstances, and fully considering the criteria shown in

section 109(a)(1) of the Act, made findings of fact, conclusions

of law and issued an ORDER on the record, rendering his decision

from the bench. Five violations were found as originally charged.
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Findings of Fact and Conclusions of Law

 The findings of fact, conclusions of law, and ORDER made on

the record from the bench are hereby incorporated herein by

reference and are AFFIRMED (Tr. 21-24).

Civil Penalties Assessed

Notice No. Date Section 30 CFR Penalty

 6-0029 04/27/76 75.1710 $ 50

 6-0083 08/03/76 77.216(c) 55

 6-0085 08/03/76 77.215(h) 45

 7-0029 02/15/77 75.1713-5 50

 7-0134 08/24/77 75.316 50

 Total $250

Disposition

 The Judge was notified by letter from the Office of the

Solicitor, U.S. Department of Labor, that the Respondent had

submitted payment of $250, as ordered for the five violations

found by the Judge in his BENCH decision. WHEREFORE the

above-captioned is CLOSED.

 Malcolm P. Littlefield

 Administrative Law Judge

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

FOOTNOTES START HERE

~FOOTNOTE_ONE

 1. Successor-in-interest to the Mining Enforcement and

Safety Administration (MSHA).