Drummond Co., Inc.

Plain-English summary

Drummond and the Secretary submitted a proposed settlement covering 18 citations and $31,488 in originally assessed penalties. Judge Jeffrey Tureck rejected the filing because it did not provide the concrete explanations required for substantial reductions in gravity, negligence, and penalties. He also identified apparent inconsistencies in the treatment of individual citations, including one that had been upgraded and then proposed for return to its original designations. The parties were allowed to revise the motion and proposed decision and resubmit them by June 17, 2013.

Decision snapshot

• Governing authority: 29 C.F.R. § 2700.31(f)
• Outcome: The joint settlement motion and draft decision were not accepted, with leave to submit corrected filings.
• Key point: Settlement approval requires concrete, intelligible reasons for reducing citation severity and penalties.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 Pennsylvania Avenue, N.W., Suite 520N

Washington, D.C. 20004-1710

Telephone: (202) 434-9950

Fax: (202) 434-9949

May 10, 2013

SETH D. HARRIS, Acting Secretary of Labor,

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA),  

Petitioner 

v.

DRUMMOND CO., INC.,

Respondent

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CIVIL PENALTY PROCEEDING

Docket No. SE 2012-630 

A.C. No. 01-02901-293555-02 

Mine: Shoal Creek Mine

ORDER OF NON-ACCEPTANCE

On May 3, 2013, the parties submitted a Joint Motion to Approve Settlement and a draft
Decision Approving Settlement (“DAS”). Because neither document provides all the pertinent
information required by 29 C.F.R. §2700.31 for a motion to approve a settlement, the motion and
proposed DAS cannot be accepted for filing. See §2700.31(f).

The Secretary originally assessed a total of $31,488 in penalties for the 18 citations
comprising this docket. Nine of the citations with their respective assessed penalties were
accepted as issued by the Respondent, and another was vacated. Of the eight remaining citations,
the Secretary agreed to remove the S&S designation in each; reduce the likelihood of injury to
unlikely in seven; reduce the level of negligence in three; and reduce the number of people
affected from six to five in one. For each citation, after stating the Respondent’s position, the
motion declares that “[t]he Secretary states that he recognizes that they raise factual and legal
issues which can only be resolved by a hearing before the Commission or by the parties reaching
a compromise of the penalty proposed by the Secretary or by a modification of the
characterization of the citation to reflect a lower level of gravity or negligence, or both.”
However, he provides no concrete explanations for why he has agreed to lower the penalties and
significantly reduce the severity of these violations.

Further, comparing the citations with Respondent’s position regarding Citations 8521830
and 8522191, there do not appear to be any factual issues in contention. Moreover, the
discussion of Citation 8521830 makes it appear that the MSHA inspector acted arbitrarily in
requiring the tag to list the name of each person working on the equipment when this is what the
cited regulation requires. In addition, Citation 8521830 initially was issued non-S&S, injury
unlikely, and moderate negligence, but was amended to S&S, injury likely and high negligence
less than two weeks later. Now the Secretary has agreed to revert to his initial determinations. It
is essential that he provide a credible explanation for this turnaround. Finally, the discussion of
Respondent’s position regarding Citation 8521831 is at best confusing and at worst
incomprehensible; and the statement in the discussion of Citation 8523527 that there was no fire
hazard because “the flashpoint of oil is not hot” appears nonsensical.

Accordingly, the Joint Motion to Approve Settlement cannot be accepted. The parties may
modify the motion and the draft DAS in accordance with this order and resubmit it for approval
not later than June 17, 2013.

/s/ Jeffrey Tureck

Jeffrey Tureck

Administrative Law Judge

Distribution:

C. Renita Hollins, Esq., U.S. Department of Labor, Office of the Solicitor, 211 7th Avenue North,
Suite 420, Nashville, TN 37219

Damon J. Boiles, Esq., Drummond Company, Inc., P.O. Box 10246, Birmingham, AL 35202