Charles J. Merlo, Incorporated

Plain-English summary

MSHA alleged that a leased Caterpillar dozer lacked an audible warning and functioning directional lights. Judge George A. Koutras found that Beth Energy Mines, which owned the plant and had exclusive control of the dozer, rather than Charles J. Merlo, was responsible for the condition. The judge treated the Secretary's motion as a withdrawal of the penalty proposal against Merlo, dismissed the proceeding, and noted that a new proceeding could be brought against Beth Energy.

Decision snapshot

• Cited standard: 30 C.F.R. § 77.1605(d)
• Outcome: The penalty proposal against Charles J. Merlo, Inc. was withdrawn and the proceeding was dismissed.
• Key point: Responsibility for a leased machine's condition may turn on which operator had control and the duty to arrange repairs.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. CHARLES MERLO
DDATE:
19870529
TTEXT:

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           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. PENN 86-226
PETITIONER A.C. No. 36-00845-03503

      v.                            Cambria Slope No. 33

CHARLES J. MERLO,
INCORPORATED,
RESPONDENT

                          ORDER OF DISMISSAL

Before: Judge Koutras

                        Statement of the Case

 This proceeding concerns a proposal for assessment of civil

penalty filed by the petitioner against the respondent pursuant
to section 110(a) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. 820(a), seeking a civil penalty assessment in
the amount of $30 for an alleged violation of mandatory safety
standard 30 C.F.R. 77.1605(d), as stated in section 104(a)
Citation No. 2688979, served on the respondent on May 16, 1986.

 The respondent filed a timely answer and notice of contest,

and the case was scheduled for a hearing on the merits in
Indiana, Pennsylvania, on May 28, 1987. However, by motion filed
with me on May 15, 1987, pursuant to Commission Rule 30, 29
C.F.R. 2700.30, the petitioner seeks approval of a settlement
of the case. The petitioner also seeks my approval of a proposed
modification of the citation to substitute and name Beth Energy
Mines, Inc., as the responsible party and respondent for the
alleged violation in question.

                               Discussion

 The petitioner proposes to settle this matter with no civil

penalty assessment payment by the respondent Charles J. Merlo,
Inc. In support of the motion, petitioner's counsel states that
during the inspection the inspector observed that

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respondent's Caterpillar Dozer Model DÄ9H, Serial Number 9014013,
did not emit an audible warning and that the directional lights
in the front and rear did not function. However, counsel submits
that the responsibility for the alleged violation lies with the
Beth Energy Mines, Inc. Counsel states that the Cambria Slope
Preparation Plant, the site inspected, was owned and operated by
Beth Energy Mines, Inc., and while it leased the dozer from
Charles J. Merlo, Inc., on a month-to-month basis, it had
exclusive control of the dozer for over 4 years. Further, the
lessor and lessee had an arrangement whereby Charles J. Merlo,
Inc. would repair the dozer when a problem was reported by Beth
Energy. Beth Energy had not advised Charles J. Merlo, Inc. of the
defective warning device and lights nor had it requested repairs
be performed. Charles J. Merlo, Inc., therefore, had no duty to
correct the defects. Moreover, at the time of the inspection, the
equipment was being operated by Tom Cochran, an employee of Beth
Energy. No Charles J. Merlo, Inc. employees were exposed to the
hazard.

                           Conclusion

 On the facts of this case, it seems clear to me that the

respondent is not the party responsible for the alleged
violation. Under the circumstances, I find no basis for approving
the proposed settlement which provides for no civil penalty
assessment payment by the respondent. To the contrary, I conclude
and find that the respondent should be dismissed as the
responsible party in this proceeding, and I will treat the
petitioner's motion as a motion to withdraw its civil penalty
proposal against Charles J. Merlo, Inc. The respondent is free to
institute a new civil penalty proceeding against Beth Energy
Mines, Inc., for the alleged violation in question.

                             ORDER

 The petitioner's proposed civil penalty assessment filed

against the respondent Charles J. Merlo, Inc., is deemed to be
withdrawn, and this proceeding is dismissed.

                             George A. Koutras
                             Administrative Law Judge