CCASE:

SOL (MSHA) V. GATEWAY COAL

DDATE:

19790305

TTEXT:
~1

 Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)

 Office of Administrative Law Judges

SECRETARY OF LABOR, Civil Penalty Proceedings

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA), Docket No. PITT 78-368-P

 PETITIONER A/O No. 36-00906-02016 V

 v. Docket No. PITT 78-369-P

 A/O No. 36-00906-02017 V

GATEWAY COAL COMPANY,

 RESPONDENT Gateway Mine

 DECISION

Appearances: David F. Barbour, Esq., Office of the Solicitor,

 Department of Labor, Arlington, Virginia, for

 Petitioner MSHA;

 R. Henry Moore, Esq., Rose, Schmidt, Dixon, Hasley,

 Whyte & Hardesty, Pittsburgh, Pennsylvania, for

 Respondent.

Before: Judge Merlin

 The above-captioned cases are petitions for the assessment

of civil penalties filed by the Mine Safety and Health

Administration against Gateway Coal Company, the respondent.

 At the outset of the hearing, operator's counsel challenged

MSHA's assessment procedures. I held that the hearing before me

is de novo in all aspects, and that MSHA's assessment procedures

are not involved stating in this respect as follows (Tr. 16-17):

 I hold I have no jurisdiction to review the Secretary

 of Labor's assessment procedures. There is no point in

 taking evidence regarding the assessment procedures

 because it does not lie within my jurisdiction to do

 anything about it.

 The hearing before the Administrative Law Judges of the

 Commission in penalty cases are entirely de novo. The

 proposed assessments not only are not binding upon me,

 but I wholly reject any notion that they have an

 influence potential, or actual, upon the ultimate

 determination I make in any given instance.
~2

 I determine the existence of a violation in a hearing such as

this based solely upon the record, documentary and testimonial,

which is made before me. Where I conclude a penalty exists, I

determine the amount of penalty in accordance with the statutory

criteria, based, once again, solely upon the record made before

me.

 I note that section 2700.24 requires that the petition

 for civil penalties include the proposed penalties.

 This, obviously, has to do with the settlement process

 concerning which, as both counsel well know, Congress

 expressed serious concern.

 This concern found expression particularly with respect

 to the reduction of original assessments. But this,

 again, dealt only with the settlement process. Once we

 come to a hearing on the merits, as we are doing here,

 the entire matter is de novo; and I am not influenced

 by anything except the record that is made before me in

 this room.

 It makes no difference in this penalty proceeding

 whether the alleged violation was cited in an order of

 withdrawal, or in a notice of violation. The issue

 before me is not whether a notice, instead of an order,

 should have been issued; or whether, in particular, the

 issuance of an unwarrantable order was justified.

 The Act very specifically sets forth the type and

 nature of hearing to be held in penalty cases. I do not

 believe the Administrative Law Judges have been given

 the authority to oversee the Secretary's assessment

 procedures; especially where, as here, those procedures

 have no effect whatsoever on the fulfillment and

 discharge of my responsibilities.

Item 7-0121

 At the hearing, documentary exhibits were received and

witnesses testified on behalf of MSHA and the operator regarding

this item. At the conclusion of the taking of evidence, the

parties presented oral argument (Tr. 78-88). A decision was then

rendered from the bench setting forth findings, conclusions, and

determinations with respect to the alleged violation as follows

(Tr. 88-91):

 Based upon the testimony which I have heard this

 morning, I find the violation existed. I accept the

 inspector's description of the cited condition as

 consisting of loose coal, coal dust, and float coal

 dust ten feet wide, 50 feet long, and up to six inches

 in depth with most of the depth consisting of float

 coal dust.
~3

 The inspector's testimony regarding the condition is the most

detailed and, therefore, the most persuasive evidence on the

point. I also accept the inspector's opinion that this condition

existed for more than eight hours.

 I conclude that the operator should have been aware of

 these accumulations, and that it did not take the

 necessary steps to clean them up. I further accept the

 inspector's view that the materials in question should

 have been cleaned up before the midnight shift ended

 and that because they were not so cleaned up, the

 operator permitted them to exist within the purview of

 section 75.400. For all these reasons, therefore, I

 find a violation.

 With respect to gravity, the inspector on direct

 testimony referred to danger from explosion, fire, and

 dust among other things. However, on cross-examination,

 the inspector stood by his contemporaneous written

 statement to the effect that it was improbable that any

 of these hazards would occur. He specifically referred

 to the good condition of the rest of the section, which

 was rock dusted, the good condition of the roof, and

 the presence of water hose. In this connection, I also

 note the limited extent of the accumulation. Therefore,

 while the violation is serious because it presents a

 danger to the safety of the miners, it is not as

 serious as it would first appear. In light of the

 foregoing, I conclude the violation is of ordinary

 gravity.

 Based upon the facts already set forth, I find the

 operator was negligent because it should have been

 aware of the accumulations, and should have cleaned

 them up at least on the prior midnight shift.

 I take into account the history of prior violations

 shown on the printout. However, in the absence of the

 definitive information regarding statistics for

 violations of section 75.400, I cannot accept the

 Solicitor's ballpark representation that the operator's

 violations of that mandatory standard amounting to

 approximately 56, is excessive when compared with the

 record of other operators. However, as operator's

 counsel himself pointed out, there were 18 violations

 of section 75.400 in 1977. I take all the foregoing

 into account in considering the operator's prior

 history as well as the fact that its record apparently

 improved with respect to 75.400 in 1978.
~4

 In accordance with the stipulations agreed to by the parties, I

find the operator is large in size. In accordance with the

stipulations agreed to by the parties, I find this violation was

abated in good faith. In accordance with the stipulations of the

parties, I find that the assessment of any penalty will not

affect the operator's ability to continue to do business.

 In light of all foregoing factors, the penalty of $400

 is hereby assessed.

Item 7-0117

 The Solicitor moved to withdraw this item without prejudice

because the inspector could not testify due to a serious illness.

The motion, which was granted from the bench, is hereby affirmed

(Tr. 10).

Item 7-0128

 The parties recommended a settlement of $400 for this

violation of section 75.400. The Solicitor advised that the

accumulations in this instance were comparable to those in Item

7-0121 concerning which a hearing had been held, and that in this

instance also, the inspector would testify that the occurrence of

any danger was improbable. Accordingly, the recommended

settlement of $400 was approved from the bench and is hereby

affirmed (Tr. 92-94).

Item 7-0131

 The parties recommended a settlement of $400 for this

violation of section 75.400. Once again, the Solicitor advised

that although this violation was composed of three separate

accumulations, it was comparable in nature and extent to those

already considered. Accordingly, the recommended settlement of

$400 was approved from the bench and is hereby affirmed (Tr.

94-95).

Item 7-0133

 The parties recommended a settlement of $2,500 for this

violation of 75.400 which involved 4,400 feet of loose coal, coal

dust, and float coal dust. According to the Solicitor, the

violation was visually obvious and very serious, although in

mitigation of gravity, the Solicitor stated there were no roof or

electrical defects. I approved the recommended settlement from

the bench on the ground that $2,500 was a substantial penalty

which would effectuate the purposes of the Act. The approval of

the settlement is hereby affirmed (Tr. 97-99).
~5

Item 7-0110

 The parties recommended a settlement of $300 for this item,

which was a violation of 75.1107-1(b), because eight sprays on

the continuous miner were not working. The Solicitor pointed out

that gravity was mitigated because 12 other sprays on the machine

had not been cited, and there were no electrical defects or

accumulations of grease or oil on the machine. Accordingly, the

recommended settlement was approved from the bench and is hereby

affirmed (Tr. 95-97).

Item 7-0111

 The parties recommended a settlement of $500 for this

violation of 75.601 which involved the use of a jumper cable

without short-circuit protection for one hundred feet. In

mitigation of the penalty amount, the Solicitor pointed out that

the operator had shown an improving safety record with respect to

this mandatory standard. I found the violation serious and stated

that were it not for the operator's improving safety record, a

higher penalty would have been imposed. However, in view of all

the circumstances, the recommended settlement was accepted from

the bench and is hereby affirmed (Tr. 99-101).

 ORDER

 I note that the originally assessed amounts were $4,000 for

each of the accumulations violations. These amounts are

excessive, especially with respect to violations where the

inspector himself admitted the occurrence of any danger was

unlikely. The originally assessed amounts of $1,500 for the other

violations also were too great in light of the circumstances. I

state, as I have before, that the imposition of such large

amounts unwarranted by the facts does not serve any valid program

purpose.

 The operator is ORDERED to pay $4,500 within 30 days.

 Paul Merlin

 Assistant Chief Administrative Law Judge