Concrete Materials

Plain-English summary

The Solicitor asked to reduce a proposed civil penalty from $690 to $50 for a citation involving a fence around an electrical substation. The citation stated that the substation had exposed energized high-voltage components and that contact might result in a fatality. Judge Paul Merlin denied the settlement because the motion gave no reasons for the proposed 93 percent reduction and the $50 penalty was inconsistent with the inspection facts. The Solicitor was ordered to submit supporting information within 30 days or the case would be set for hearing.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.12067.
• Outcome: The proposed settlement was denied and the Solicitor was ordered to provide additional support within 30 days.
• Key point: Settlement proposals must give explicit reasons for large penalty reductions and allow the Commission to evaluate the statutory penalty criteria.

Full text (FMSHRC public release)

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 92-358-M
Petitioner : A. C. No. 39-00226-05506
:
v. :
:
:
CONCRETE MATERIALS, : Summit Pit
Respondent :

              ORDER DISAPPROVING SETTLEMENT
               ORDER TO SUBMIT INFORMATION

Before: Judge Merlin

 This case is before me upon a petition for assessment of a

civil penalty under section 105(d) of the Federal Mine Safety and
Health Act of 1977. The Solicitor has filed a motion to approve
settlement of the one violation involved in this case. The
Solicitor seeks approval of a reduction in the penalty amount
from the original proposal of $690 to $50.

 Citation No. 3909835 was issued for a violation of 30 C.F.R.

56.12067 because the fence surrounding an electrical substatio
was not six feet in height. According to the citation, the sub-
station contained six mounted transformers with exposed energized
components. The inspector concluded that contact with the ener-
gized high voltage components might result in a fatality. In her
motion the Solicitor alleges that negligence is less than origi-
nally assessed and that because the violation was unlikely rather
than likely to contribute to an accident the significant and
substantial designation should be deleted.

 The Solicitor however, gives no reasons to support the

conclusions she would have the undersigned adopt. She has
instead filed her usual form motion. In this instance where the
Solicitor recommends a 93% reduction in the penalty amount she
must do more. Even more importantly, a $50 penalty would be
totally at variance with what the inspector wrote on the citation
which would require a far higher penalty under the criteria set
forth in section 110 (i) of the Act.

 The Solicitor is reminded that the Commission and its judges

bear a heavy responsibility in settlement cases pursuant to
section 110(k) of the Act. 30 U.S.C. 820(k); See, S. Rep. No.
95-181, 95th Cong., 1st Sess. 44-45, reprinted in Senate Subcom
mittee on Labor, Committee on Human Resources, 95th Cong., 2d
Sess., Legislative History of the Federal Mine Safety and Health
Act of 1977, at 632-633 (1978). It is the Commission's responsi-
bility to determine the appropriate amount of penalty, in accor-
dance with the six criteria set forth in section 110(i) of the
Act. 30 U.S.C. 820(i); Sellersburg Stone Company v. Federal
Mine Safety and Health Review Commission, 736 F.2d 1147 (7th Cir.
1984).

 Based upon the Solicitor's motion, I cannot conclude that

the recommended penalty of $50 is warranted. The Solicitor must
provide explicit reasons for the action she wishes this Commis-
sion to undertake.

 In light of the foregoing, it is ORDERED that the motion for

approval of settlement be DENIED.

 It is further ORDERED that within 30 days of the date of

this order the Solicitor submit additional information to support
her motion for settlement. Otherwise this case will be assigned
and set for hearing.

                               Paul Merlin
                               Chief Administrative Law Judge

Distribution: (Certified Mail)

Margaret A. Miller, Esq., Office of the Solicitor, U.S. Depart-
ment of Labor, 1585 Federal Bldg., 1961 Stout St., Denver, CO
80294

Jerome T. Nusbaum, Concrete Materials, P.O. Box 84140, Sioux
Falls, SD 57118