Secretary of Labor (MSHA) v. Kaiser Sand & Gravel Co. (ALJ decision, July 15, 1983)

Plain-English summary

MSHA cited dry vegetation near an electrical substation at Kaiser Sand & Gravel's Sisquic Pit and Mill. The operator paid the originally assessed $20 and withdrew its notice of contest, and the Secretary sought approval of that amount. Chief Judge Paul Merlin denied the settlement because the motion referred to an inspector statement about abatement, negligence, and gravity but did not attach it. He also found that the nominal $20 penalty needed an explanation of why the cited dry vegetation lacked gravity. He said the dry vegetation appeared to fall within the cited standard, and the record needed an explanation if the condition lacked gravity. He held that withdrawing the contest was not determinative once the Commission had jurisdiction, and that settlement review required the six statutory penalty factors. He required more information within 30 days or a hearing.

Decision snapshot

• Governing provision: 30 U.S.C. § 820(i), statutory penalty factors. The cited vegetation standard is not numbered in this order.
• Outcome: Proposed $20 settlement denied pending information or a hearing; no final penalty entered.
• Key point: The missing inspector statement and unexplained low gravity assessment prevented approval of this $20 settlement.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. KAISER SAND & GRAVEL
DDATE:
19830715
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. WEST 83-64-M
PETITIONER
A.C. No. 04-01959-05501

v. Sisquic Pit and Mill

KAISER SAND & GRAVEL CO.,
RESPONDENT

DENIAL OF SETTLEMENT

ORDER TO SUBMIT INFORMATION

The Solicitor has filed a motion for settlement for the one violation involved in this matter. She advises that the operator has paid the originally assessed amount of $20 and has withdrawn its notice of contest.

Since the Commission's jurisdiction has attached, the operator's proposed withdrawal of its notice of contest is not determinative. Under section 110 of the Act the Commission has the responsibility to insure that all settlements comply with the requirements of the law including the six statutory criteria. In her motion the Solicitor sets forth information regarding history, size and ability to continue in business. With respect to abatement, negligence and gravity the Solicitor directs my attention to the "inspector's statement, Exhibit 1 attached hereto, which reflects the testimony of the inspector if he were to testify." There is, however, no inspector's statement attached to the motion. Such carelessness is unfortunately all too typical of these settlement motions. The Commission and its Judges should not have to waste time repeatedly attempting to obtain information necessary to dispose of settlement motions.

Moreover, on the face of the matter, I cannot approve the proposed settlement. In my opinion, $20 is a nominal penalty which denotes a lack of gravity. The dry vegetation cited by the inspector appears to fall squarely within the mandatory standard. The proximity of this vegetation to the electrical substation does not necessarily mandate a finding that the condition was serious but if there was no gravity there must be an explanation why.

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ORDER

In light of the foregoing, it is Ordered that the Solicitor's motion for settlement be Denied.

It is further Ordered that within 30 days from the date of this order the Solicitor file information adequate for me to determine whether the proposed penalty is justified and settlement warranted. Otherwise, this case will be assigned and set down for hearing on the merits.

Paul Merlin
Chief Administrative Law Judge