Ezel / Agency Decisions / WEST 92-325-M

Mountain Cement Company, a Wyoming Partnership (ALJ decision, March 16, 1993)

Mountain Cement Company, a Wyoming Partnership (FMSHRC WEST 92-325-M and related dockets): $5,300 settlement approved for protective-clothing violations

Decision type
ALJ decision
Dockets
WEST 92-325-M, WEST 91-109-M, WEST 92-323-M, WEST 92-358-M, WEST 92-321-M, WEST 92-324-M, WEST 92-376-M, WEST 92-322-M
Decided
March 16, 1993
Presiding judge
John J. Morris
Outcome
Settled
Precedential status
Final order, not precedent
Checked against source
2026-08-15
Cited standards
30 C.F.R. § 56.15006 30 U.S.C. § 801 30 U.S.C. § 802(e) 30 U.S.C. § 820(a) 30 U.S.C. § 820(c)
Official source
Read the official release (fmshrc.gov)
PDF
View Official PDF

Apply this to your situation

This order from 1993 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.

Currency note: this decision dates from 1993
The MSHA standards may have been amended, penalty amounts have been adjusted, and later Commission or court decisions may have changed the analysis since then. Treat this page as historical context, not current compliance advice. Verify the current standard before relying on any specific rule, threshold, or penalty mentioned here.
Final ALJ decision, not Commission precedent
This decision became final under the 40-day rule in 30 U.S.C. § 823(d)(1) because no later Commission review appears in the official index. It binds the parties but is not Commission precedent. The full text below is from the official FMSHRC release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official FMSHRC release. The full text is the agency's own release.
Read the official release (fmshrc.gov)

Plain-English summary

The eight consolidated proceedings arose from a citation alleging that special protective clothing was not worn while an employee attempted to poke and unplug a preheat tower at Mountain Cement's operation. The Secretary alleged that the company and several agents knowingly authorized or carried out the practice, which was associated with a serious burn injury. Judge John J. Morris found the settlement reasonable and in the public interest. He approved $5,300 in total payments from $7,900 proposed penalties, including $1,500 from Mountain Cement, $800 from Steve Bonar, and $500 from each of six other respondents.

Decision snapshot

  • Cited standard: 30 C.F.R. § 56.15006
  • Outcome: The settlement was approved, and the respondents were ordered to pay $5,300 in total.
  • Key point: A settlement may allocate full payment to the company and the employee on duty during the incident while reducing the proposed penalties for other agents.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

March 16, 1993

SECRETARY OF LABOR,
: CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
: Docket No. WEST 91-109-M
ADMINISTRATION (MSHA),
: A.C. No. 48-00007-05548
Petitioner :
: Mountain Cement Company
v. :
:
MOUNTAIN CEMENT COMPANY,
:
a Wyoming Partnership,
:
Respondent :
:
:
SECRETARY OF LABOR,
: CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
: Docket No. WEST 92-321-M
ADMINISTRATION (MSHA),
: A.C. No. 48-00007-05563A
Petitioner :
: Mountain Cement Company
v. : Albany County, Wyoming
PAUL MILLER, JR., employed
:
by MOUNTAIN CEMENT COMPANY, :
Respondent
:
:
:
SECRETARY OF LABOR,
: CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
: Docket No. WEST 92-322-M
ADMINISTRATION (MSHA),
: A.C. No. 48-00007-05565A
Petitioner :
: Mountain Cement Company
v. : Albany County, Wyoming
PAUL ESTEVE, employed by
:
MOUNTAIN CEMENT COMPANY,
:
Respondent
:
:
:
SECRETARY OF LABOR,
: CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
: Docket No. WEST 92-323-M
ADMINISTRATION (MSHA),
: A.C. No. 48-00007-05566A
Petitioner :
: Mountain Cement Company
v. : Mountain Cement Company
JAMES F. MAY, employed by
:
MOUNTAIN CEMENT COMPANY,
:
Respondent

SECRETARY OF LABOR,
: CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH : Docket No. WEST 92-324-M ADMINISTRATION (MSHA), : A.C. No. 48-00007-05568A
Petitioner : Mountain Cement Company : Albany County, Wyoming
v. :
RICK G. WILSON, employed by :
MOUNTAIN CEMENT COMPANY, :
Respondent :
:
:
:
SECRETARY OF LABOR,
: CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH : Docket No. WEST 92-325-M Petitioner : A.C. No. 48-00007-05569A MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), :
v. : Mountain Cement Company
: Albany County, Wyoming
WILLIAM SMITH, employed by :
MOUNTAIN CEMENT COMPANY, :
Respondent :
:
:
:
SECRETARY OF LABOR,
: CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH : Docket No. WEST 92-358-M ADMINISTRATION (MSHA), : A.C. No. 48-00007-05567A
Petitioner : Mountain Cement Company : Albany County, Wyoming
v. :
THOMAS G. JACKSON, employed :
by MOUNTAIN CEMENT COMPANY, :
Respondent :
:
:
:
SECRETARY OF LABOR,
: CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH : Docket No. WEST 92-376-M ADMINISTRATION (MSHA), : A.C. No. 48-00007-05564A
Petitioner : Mountain Cement Company : Albany County, Wyoming
v. :
STEVEN M. BONER, employed :
by MOUNTAIN CEMENT COMPANY, :
Respondent :

DECISION APPROVING SETTLEMENT

Before: Judge Morris

These cases are civil penalty proceedings initiated by Petitioner against Respondents pursuant to the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (the "Act"). The civil penalties sought here are for the violation of Section 110(a) and Section 110(c) of the Act.

The eight cases herein were assessed penalties totaling $7,900. The Secretary agreed to settle the cases for voluntary civil penalty payments totaling $5,300.00.

The proceedings all involve MSHA Citation No. 3451535 which was issued to the corporate mine operator on June 7, 1990, citing a violation of 30 C.F.R. § 56.15006.

The violation was issued because special protective clothing was not worn by an employee attempting to poke and unplug the preheat tower. The Secretary's investigation of the serious burn injury accident, related to the issuance of the above-cited violation, indicated that it was an established practice, by both management and employees at this mine, to unplug or poke the preheat tower without wearing protective clothing.

It is the Secretary's position that each of the above-named Respondents, acting as agents of the corporate mine operator within the meaning and scope of Sections 3(e) and 110(c) of the Mine Act, knowingly authorized, ordered, or carried out the aforesaid violation of the corporate mine operator. Further, it is the Secretary's position that each of the respondents allowed and condoned the existence of the practice not to use, or require the use of, the hot suit when efforts related to unplugging the preheat tower took place, prior to the issuance of the aforesaid violation.

The Respondents each take the position that, but for pur- poses of the Mine Act, nothing contained herein shall constitute an admission by any of the Respondents that they knowingly vio- lated the Mine Act or its regulations.

The Settlement agreement involves the full payment of the proposed penalty for the company case filed in Docket No. WEST 91-109-M. It also includes the full payment of the proposed penalty for Docket No. WEST 92-376-M, which involves the agent who was on duty at the time the accident occurred, and which resulted in the violation being issued. The settlement further includes reduced penalties of $500.00 for each of the other Section 110(c) cases involved in these proceedings.

Therefore, the settlement is allocated among the various cases as follows:

A/O No.
Docket No. 48-00007 Respondent Penalty Settlement

   WEST 91-109-M       -05548         Mountain         $1,500       $1,500

Cement Co. 

   WEST 92-358-M       -05567-A       Thomas Jackson    1,200          500

Vice President 

   WEST 92-323-M       -05566-A       James May         1,000          500

Superintendent 

   WEST 92-322-M       -05565-A       Paul Esteve       1,000          500

Superintendent 

   WEST 92-324-M       -05568-A       Rick Wilson         800          500

Shift Foreman 

   WEST 92-321-M       -05563-A       Paul Miller         800          500

Shift Foreman 

   WEST 92-325-M       -05569-A       William Smith       800         500

Shift Foreman 

   WEST 92-376-M       -05564-A       Steve Bonar         800          800

Shift Foreman
TOTALS $7,900 $5,300

The Secretary submits that the violation involved a degree of both negligence and seriousness because it resulted in a miner's suffering a serious burn injury, and that it was abated in good faith after its issuance. The Secretary further submits that corporate operator is a medium-size operator with an average history of prior violations for an operation its size. It is also noted that none of the agent Respondents has a prior history of Section 110(c) violations.

I have reviewed the settlement and I find it is reasonable and in the public interest. It should be approved.

Accordingly, I enter the following:

ORDER

1. The settlement agreement is APPROVED.

2. In WEST 91-109-M and WEST 92-376-M the Petition for Assessment of a Civil Penalty and the proposed civil penalties are AFFIRMED.

3. Respondent's Mountain Cement Company and Steve Bonar are ORDERED TO PAY to the Secretary of Labor their respective penalties of $1500 and $800 within 30 days of the date of this decision.

4. In the remaining six cases, the Petition for Assessment of a Civil Penalty and the amount of the Proposed Settlement are AFFIRMED.

5. Respondents Jackson, May, Esteve, Wilson, Miller, and Smith are ORDERED TO PAY to the Secretary of Labor within 30 days their respective penalties of $500 each.

John J. Morris
Administrative Law Judge

Distribution:

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

Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail)

Allen Gardzelewski, Esq., CORTHELL & KING, P.O. Box 1147, Laramie, WY 82070 (Certified Mail)

Phillip Nicholas, Esq., NICHOLAS LAW OFFICE, P.O. Box 928, Laramie, WY 82070 (Certified Mail)

ek
Robert J Murphy Esq
Office of the Solicitor
U S Department of Labor
1585 Federal Office Building
1961 Stout Street
Denver CO 80294

Edward H Fitch Esq
Office of the Solicitor
U S Department of Labor
4015 Wilson Boulevard
Arlington VA 22203

Allen Gardzelewski Esq
CORTHELL & KING
P O Box 1147
Laramie WY 82070

Phillip Nicholas Esq
NICHOLAS LAW OFFICE
P O Box 928
Laramie WY 82070

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