Secretary of Labor v. Tri-City Paving Company (ALJ decision, November 9, 1984)

Plain-English summary

MSHA issued a withdrawal order and a citation after a pit wall collapsed onto a front-end loader, killing its operator. The violations concerned work under a loose bank and the lack of standards for safe control of pit walls. The two proposed penalties totaled $3,300. Judge James A. Broderick accepted the parties' settlement reducing them to $2,150, citing the motion's account of moderate negligence and the operator's small size and clean recent history. He ordered Tri-City Paving to pay within 30 days.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.3-5 and 56.3-1, pit-wall safety.
• Outcome: Settlement approved at $2,150, reduced from $3,300.
• Key point: The judge accepted the negotiated penalties for the two pit-wall violations following the fatal collapse.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. TRI PAVING
DDATE:
19841109
TTEXT:
~2565

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 84-51-M
PETITIONER
A.C. No. 21-02824-05501
v.
Cap's Pit
TRI-CITY PAVING COMPANY,
RESPONDENT

DECISION APPROVING SETTLEMENT

Before: Judge Broderick

On November 7, 1984, the Secretary filed a motion to dismiss and approve a settlement agreement involving the two alleged safety violations involved in this proceeding.

The violations were originally assessed at $3,300 and the parties propose to settle for $2,150.

The withdrawal order charging a violation of 30 C.F.R.
56.3-5, and the citation charging a violation of 30 C.F.R. 56.3-1 both were issued following an investigation of fatal accident, in which a front-end loader operator was killed when the bank under which he was working caved engulfing him and the loader with material from the pit wall. The order charged Respondent with working under a loose and dangerous bank and was originally assessed at
$3,000. The citation charged Respondent with failing to establish standards for the safe control of pit walls. It was originally assessed at $300.

Respondent is a small operator and has had no history of violations in the 24-month period preceeding the order and citation herein involved.

The motion states that the proposed penalty reductions (to $2,000 and $150) are justified because the Respondent's negligence was deemed moderate. The operator of the front-end loader had put himself in a dangerous position by working too ~2566 close to the highwall. He had previously been advised at safety meetings not to move too close to the highwall. The violation of 30 C.F.R. 56.3-1 was considered a technical violation and would not in itself contribute to a hazard.

I accept the representations in the motion and conclude that the settlement is in the public interest.

Therefore, the motion is GRANTED and Respondent IS ORDERED to pay the agreed amount, $2,150 within 30 days of the date of this order.

James A. Broderick
Administrative Law Judge