McFarland & Hullinger (ALJ decision, February 22, 1989)

Plain-English summary

McFarland & Hullinger faced three violations at the Kennecott Carr Fork operation. One remaining citation involved a dump truck left on a grade without its wheels blocked or turned into a bank or rib. The truck rolled, and driver Melvin Steward was fatally injured while trying to climb aboard. Judge Paul Merlin approved the settlement after the Solicitor provided additional information about the circumstances and reduced operator negligence, lowering the penalty for that violation from $1,000 to $800. The operator was ordered to pay $800 for the remaining violation and $300 for the two violations covered by the earlier partial settlement.

Decision snapshot

• Cited standard: 30 C.F.R. § 57.9037
• Outcome: The settlement was approved, and the operator was ordered to pay $800 for the remaining violation plus $300 for the two earlier settled violations.
• Key point: The ALJ approved a reduced penalty after receiving additional information supporting a lower degree of operator negligence.

Full text (FMSHRC public release)

CCASE:
SOL V. MCFARLAND & HULLINGER
DDATE:
19890222
TTEXT:

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FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION WASHINGTON, D.C.
February 22, 1989

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING MINE SAFETY AND HEALTH ADMINISTRATION (MSHA), Docket No. WEST 88-328-M
Petitioner A. C. No. 42-01153-05501

v. Kennecott Carr Fork

MCFARLAND & HULLINGER,
Respondent

DECISION APPROVING SETTLEMENT
ORDER TO PAY

Before: Judge Merlin

On December 22, 1988, the Solicitor submitted a motion to approve settlement of the three violations involved in this case. On January 13, 1989, I issued an order approving settlement for two of the violations, disapproved the settlement for the remaining violation and ordered the Solicitor to submit additional in formation for that violation. The Solicitor now has submitted an amended motion containing the required additional information.

The one citation remaining in this case was issued for a violation of 30 C.F.R. 57.9037 because a dump truck had been left on a grade with the parking brakes on, but the wheels neither blocked nor turned into a bank or rib. The truck started to roll and the driver was fatally injured as he attempted to climb aboard. The penalty was originally assessed at $1,000 and the proposed settlement is for $800. The Solicitor represents that the reduction is warranted because operator negligence is less than originally thought. The Solicitor advises in this respect as follows:

"Prehearing preparation had revealed that Melvin Steward, the decedent, had earlier in the day witnessed a highway accident which resulted in the death of an elderly gentleman who was killed when his camper ran a stop sign. This occurrence greatly disturbed and upset Mr. Steward. In fact, he not only telephoned his wife to relate his observations but decided to tell the shop lead man Ivan Zenger what he had witnessed. His idiosyncratic behavior in locking the truck brakes yet failing to lock the trailer brakes can only be explained by his agitated state of

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~255 mind. Secondly, it was disclosed that Mr. Zenger was not a shop foreman but a lead man who did not exercise any supervision, direct or indirect, over Mr. Steward."

I accept the foregoing representations, and based upon them I approve the recommended settlement.

Accordingly, the motion to approve settlement for this violation is GRANTED and the operator is ORDERED TO PAY $800 within 30 days from the date of this decision.

In the prior partial settlement approval, I approved settlements for the two other violations involved in this case. If it has not already done so, the operator is ORDERED TO PAY $300 for these violations within 30 days from the date of this decision.

Paul Merlin
Chief Administrative Law Judge

Distribution:

Robert J. Murphy, Esq., Office of the Solicitor, U. S. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 80294 (Certified Mail)

Mr. Sidney K. Hullinger, McFarland & Hullinger, Box 238, Tooele, UT 84074 (Certified Mail)

Thomas Mascolino, Esq., Counsel, Trial Litigation, Office of the Solicitor, U. S. Department of Labor, 4015 Wilson Boulevard, Suite 414, Arlington, VA 22203 (Handcarried)