Neil Sprague

Plain-English summary

MSHA cited Neil Sprague for failing to provide an elevated haulage road at the Trupp Quarry and later issued a withdrawal order because the berm was not built within the allowed time. The parties settled after preparation for hearing showed that adverse weather had caused the delay. Judge Michael A. Lasher approved the settlement, vacated the withdrawal order, affirmed the citation, and reduced the proposed penalty from $195 to $30. The judge also noted that Sprague was a small operator with three violations in the preceding 24-month period.

Decision snapshot

• Cited standard(s): The release does not identify a numbered safety standard.
• Outcome: The withdrawal order was vacated, the citation was affirmed, and a $30 civil penalty was ordered.
• Key point: A settlement may resolve an abatement dispute by vacating a withdrawal order while leaving the underlying citation in place at a reduced penalty.

Full text (FMSHRC public release)

           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 87-129-M
PETITIONER A.C. No. 05-02666-05504

          v.                        Trupp Quarry

NEIL SPRAGUE,
RESPONDENT

                       DECISION APPROVING SETTLEMENT

Before: Judge Lasher

 Citation No. 2638675 was issued on December 1, 1986, for

Respondent's failure to provide for an elevated haulage road. On
January 28, 1987, a Section 104(b) Withdrawal Order (Failure to
Abate Order No. 2637460) was issued since the Respondent failed
to provide the berm within the time period provided in the
Citation and its extension. In issuing the Withdrawal Order, the
Inspector noted that the Order was written to "replace" the
Citation "which was not complied with."

 In the parties' joint motion for approval of the settlement,

the Petitioner moved to vacate the Order since preparation for
the hearing "revealed that the failure to build a berm was caused
by adverse weather conditions." As part of the settlement the
administrative penalty originally sought by MSHA was reduced from
$195 to $30. The reduction appears justified in view of the
inference to be drawn from the fact that the Withdrawal Order has
been withdrawn. I conclude that this reflects a change in
Petitioner's initial belief that Respondent did not proceed in
good faith to promptly abate the violation after notification
thereof. It also appears that this is a small operator (8800
hours worked per year) who had a record of but 3 violations in the preceding 24Ämonth period.

    In the premises, the settlement is approved.

                                   ORDER

    1. Withdrawal Order No. 2637460 is vacated.

    2. Citation No. 2638675 is affirmed.

    3. Respondent, if it has not previously done so, shall pay the
    Secretary of Labor within 30 days from the date of this decision
    the sum of $30.00 as and for the civil penalty for the violation
    described in Citation No. 2638675.


                              Michael A. Lasher, Jr.
                              Administrative Law Judge