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 78-138-P

 PETITIONER (A/O No. 15-02502-02013)

 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

 faith of the operator charged in attempting to achieve

 rapid compliance after notification of a violation.

Petition

 On January 17, 1978, the Mine Safety and Health

Administration (MSHA),(FOOTNOTE 1) through its attorney, filed a

petition for assessment of civil penalties charging 20 alleged

violations of the Act.

Answer

 On January 31, 1978, Respondent filed a detailed response to

the allegations and requested a hearing thereon.

Tribunal

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

1979. Both MSHA and Shamrock Coal Company were represented by

counsel (Tr. 3).

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. Twenty 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. 19-25).

Civil Penalties Assessed

Notice No. Date Standard 30 CFR Penalty

 7-0040 04/26/77 75.601-1 $ 65

 7-0046 05/02/77 75.1710 55

 7-0047 05/02/77 75.1710 55

 7-0048 05/02/77 75.1710 55

 7-0051 05/02/77 75.516-2 70

 7-0052 05/02/77 75.1103-1 65

 7-0057 05/02/77 75.701 70

 7-0058 05/02/77 75.1100-2(b) 100

 7-0059 05/02/77 77.400 100

 7-0065 05/05/77 75.1107-1(b) 65

 7-0069 05/05/77 75.518 100

 7-0070 05/05/77 75.1100-2(e) 65

 7-0073 05/05/77 75.1106-3(c) 65

 7-0074 05/05/77 75.1106-3(a)2 65

 7-0075 05/05/77 75.601-1 25

 7-0076 05/05/77 75.601 25

 7-0077 05/05/77 75.517 50

 7-0078 05/05/77 75.1105 65

 7-0079 05/05/77 75.1102 95

 7-0080 05/05/77 75.518 95

 Total $1,350

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
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$1,350, as ordered for the 20 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).