S.M. Lorusso & Sons, Inc. (ALJ decision, August 27, 1985)

Plain-English summary

S.M. Lorusso & Sons, Inc. faced five citations involving excessive noise exposure and missing or damaged guards at a crushed-stone operation. Judge Paul Merlin considered the seriousness of each condition, the operator's small size, its limited prior violations, and the circumstances of employee exposure. He assessed penalties of $20, $55, $20, $45, and $20, for a total of $160. Payment was ordered within 30 days.

Decision snapshot

• Cited standard(s): 30 C.F.R. §§ 56.5-50(b), 56.14-1, and 56.14-6
• Outcome: Five citations were resolved through penalties totaling $160.
• Key point: Penalty amounts reflected the individual hazards, actual exposure, operator size, and prior violation history.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) v. S. M. LORUSSO & SONS
DDATE:
19850827
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. YORK 85-2-M
PETITIONER
A.C. No. 19-00076-05504

v. Docket No. YORK 84-12-M (FOOTNOTE.1)
A.C. No. 19-00076-05503
S.M. LORUSSO & SONS, INC.,
RESPONDENT
West Roxbury Crushed Stone

DECISION

Appearances: David L. Baskin, Esq., Office of the Solicitor, U.S. Department of Labor, Boston, Massachusetts, for Petitioner;
Michael E. Bussiere, S.M. Lorusso & Sons, Inc., Walpole, Massachusetts, for Respondent.

Before: Judge Merlin

These cases are petitions for the assessment of civil penalties. They were heard at the same time and are hereby consolidated for decision.

Citation No. 2367541 was issued for a violation of 30 C.F.R.
56.5-50(b) because an employee had been exposed to noise in excess of the maximum permissible level. However, the employee was wearing approved protective headwear and the exposure was in the nature of an isolated instance since the operator was in compliance at other times. The operator is very small in size. It has an excellent history of prior violations with only two violations for the preceding 24 months. In light of these facts, a penalty of $20 is assessed.

Citation No. 2367931 was issued for a violation of 30 C.F.R.
56.14-1 because a guard was not provided for the V-belt on the plant feeder. The violation was serious because a

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man working under the feeder could be caught at the pinch point. The operator was negligent. Taking into account these facts as well as the operator's small size and excellent prior history a penalty of $55 is assessed.

Citation No. 2221218 was issued for a violation of 30 C.F.R.
56.14-6 because part of a guard on a self-cleaning tail pulley was missing. Most of the guard was in place, the exposed area was not one where men usually worked, and no one was working in the area at the time in question. The Solicitor therefore, represented that the violation was not serious. I accept the Solicitor's representations and a penalty of $20 is assessed.

Citation No. 2221219 was issued for the same type of condition as the immediately preceding violation but there was a miner in the general area. Therefore, the violation was more serious. Negligence was ordinary. A penalty of $45 is assessed for the violation and I again note the operator's small size and excellent history.

Citation No. 2221220 was issued because of a piece of a guard near a belt drive was bent. Here again, there was no actual exposure because no one was in the area and the Solicitor again represented the violation as nonserious. A penalty of $20 is assessed.

In conclusion I repeat what already appears herein and what I told the operator at the hearing, i.e., these small penalty amounts are assessed in light of the operator's small size and excellent history. But the operator should take care that such guarding violations do not occur in the future.

Accordingly, the operator is ORDERED TO PAY $160 within 30 days from the date of this decision.

Paul Merlin
Chief Administrative Law Judge
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
FOOTNOTES START HERE:-

~Footnote_one

1 The front page of the Administrative transcript erroneously refers only to YORK 84-12-M but both dockets were heard. Accordingly, the front page is hereby amended to refer to both.