Secretary of Labor (MSHA) v. Medusa Cement Company (ALJ decision, October 14, 1983)

Plain-English summary

The Secretary proposed to settle two Medusa Cement Company citations for the original assessments totaling $105. One concerned cement buildup near a transfer elevator walkway, and the other concerned a missing cover plate at a fuel oil pit. Chief Judge Paul Merlin found that the motion gave no factual support for its statements about negligence, injury risk, and the significant and substantial designation. It also omitted information about the operator's size, violation history, and ability to continue in business. He denied the settlement motion and assigned the case to Judge James A. Broderick for hearing, leaving the citations and penalties undecided.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.11-1 and 56.11-12.
• Outcome: Proposed $105 settlement denied; case assigned for hearing, with no penalty assessed in this order.
• Key point: The judge needed facts supporting the proposed penalties under the Mine Act's six penalty criteria.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. MEDUSA CEMENT
DDATE:
19831014
TTEXT:
~1811

Federal Mine Safety and Health Review Commission Office of Administrative Law Judges

SECRETARY OF LABOR,
CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket No. LAKE 83-76-M
PETITIONER
A.C. No. 20-00038-05502

v. Medusa Cement Company
(Plant)
MEDUSA CEMENT COMPANY,
RESPONDENT

DISAPPROVAL OF SETTLEMENT
ORDER OF ASSIGNMENT

The Solicitor has filed a motion to approve settlement in the above-captioned proceeding. The Solicitor proposes to settle the two violations in this case for the original assessments total of $105.

Citation No. 2089083 was issued for a violation of 30 C.F.R.
56.11-1 because a build-up of cement was noted on the stairwa and walkway at the bottom of the transfer elevator. The violation was assessed at $85. The Solicitor states that the operator demonstrated a low degree of negligence but he gives no basis for this assertion. The Solicitor further states that the violation was significant and substantial but again he gives no reasons. The inspector checked boxes indicating that negligence was low and that occurrence was reasonably likely and could reasonably be expected to result in lost workdays or restricted duty.

Citation No. 2089085 was issued for a violation of 30 C.F.R.
56.11-12 because the cover plate for the No. 2 fuel oil pum pit was not in place. The violation was assessed at $20. The Solicitor states that the operator demonstrated a low degree of negligence and that there was no likelihood of an injury. However, the Solicitor provides no information to support these representations.

The Act makes very clear that penalty proceedings before the Commission are de novo. The Commission itself recently recognized that it is not bound by penalty assessment regulations adopted by the Secretary but rather that in a proceeding before the Commission the amount of the penalty to ~1812 be assessed is a de novo determination based upon the six statutory criteria specified in section 110(i) of the Act and the information relevant thereto developed in the course of the adjudicative proceeding. Sellersburg Stone Company, 5 FMSHRC 287 (March 1983). Indeed, if this were not so, the Commission would be nothing but a rubber stamp for the Secretary. Of course, the Commission is not bound by 30 C.F.R. 100.4 which was the basis of the one $20 "single penalty assessment" in this penalty proceeding.

The Solicitor has told me nothing about size, prior history, or ability to continue in business. Under section 110(i) of the Act I am charged with the responsibility of determining an appropriate penalty in light of the six specified criteria.

In another case involving this operator (LAKE 83-80-M) I disapproved a similarly inadequate settlement motion from this Solicitor and ordered him to submit additional information. However, the additional information he submitted still did not support approval of the proffered settlement and I therefore, assigned the case for hearing. Assignment of this case also appears to be the most expeditious manner of proceeding.

Accordingly, the settlement motion is Denied and this case is assigned to Administrative Law Judge James A. Broderick.

All future communications regarding this case should be addressed to Judge Broderick at the following address:

Federal Mine Safety and
Health Review Commission
Office of Administrative Law Judges
2 Skyline, 10th Floor
5203 Leesburg Pike
Falls Church, VA 22041

Telephone No. 703-756-6215

Paul Merlin
Chief Administrative Law Judge