Secretary of Labor v. Arthur Overgaard-Div./Mathy Construction Company (ALJ decision, July 25, 1989)

Plain-English summary

The Secretary alleged that a 52-inch self-cleaning tail pulley on a crusher discharge belt conveyor was not guarded, and an employee became entangled and suffered fatal injuries. The violation was cited under 30 C.F.R. § 56.14001. The parties proposed reducing the penalty from $5,000 to $3,700 because the operator's negligence was viewed as moderate, the area was supposed to be off limits to employees, the violation was promptly abated, and the small operator had no violation history in the prior two years. Judge Paul Merlin approved the settlement and ordered payment of $3,700 within 30 days.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.14001
• Outcome: The $3,700 settlement was approved and ordered paid within 30 days.
• Key point: The settlement considered the operator's degree of negligence, its directions restricting access, prompt abatement, size, and recent violation history.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

July 25, 1989

SECRETARY OF LABOR,
: CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
:
ADMINISTRATION (MSHA),
: Docket No. LAKE 89-45-M
Petitioner : A. C. No. 47-02651-05501
v. : Portable [illegible] Plant
:
ARTHUR OVERGAARD-DIV./MATHY :
CONSTRUCTION COMPANY,
:
Respondent :

DECISION APPROVING SETTLEMENT
ORDER TO PAY

Before: Judge Merlin

The parties have submitted a motion to approve settlement of the one violation involved in this case. The penalty was originally assessed at $5,000 and the proposed settlement is for $3,700.

The parties' motion discusses the violation in light of the six statutory criteria set forth in section 110(i) of the Federal Mine Safety and Health Act of 1977. The subject citation was issued for a violation of 30 C.F.R. § 56.14001 because the 52-inch, self-cleaning tail pulley, on the crusher discharge belt conveyor, had not been guarded. An employee became entangled at the tail pulley and received fatal injuries. The parties represent that the penalty reduction is warranted because negligence which originally was rated as high, is less than originally thought. According to the Solicitor the operator demonstrated a moderate degree of negligence because it should have known the pulley area of the rock crusher was not guarded properly. However, employees had been directed by the operator not to work or enter the cited area. It is not known why this employee was working in this area. The operator promptly abated the violation. In addition, this is a small operator with no prior history of violations for the preceding two years. Based upon the foregoing representations, I approve the recommended settlement.

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Accordingly, the motion to approve settlement is GRANTED and the operator is ORDERED TO PAY $3,700 within 30 days from the date of this decision.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Susan J. Bissegger, Esq., Office of the Solicitor, U.S. Department of Labor, 230 South Dearborn Street, Chicago, IL 60604 (Certified Mail) James Naugler, Esq., Moen, Sheehan, Meyer & Henke, Ltd., Arthur Overgaard-Div./Mathy Construction Company, First Bank Place, Suite 700, Post Office Box 786, La Crosse, WI 54602-0786 (Certified Mail) Ms. Carol Jensen, Office Manager, P. O. Box 128, Elroy, WI 53929 (Certified Mail)

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