Pomerleau Brothers, Inc. (ALJ decision, April 7, 1989)

Plain-English summary

Pomerleau Brothers, Inc. operated Chelmsford Mill. The case involved three civil penalties, including violations concerning a truck's brakes and other equipment conditions. Judge Paul Merlin approved the parties' settlement recommendations for the original penalty amounts and found that a $500 penalty was appropriate for the truck with defective service and hand brakes. The order required the operator to pay $540 within 30 days.

Decision snapshot

• Cited standard(s): 30 C.F.R. §§ 56.9087, 56.9011, and 56.9003
• Outcome: The recommended settlements were approved and the operator was ordered to pay $540.
• Key point: Settlement approval requires the judge to find the agreed penalties appropriate to the cited conditions.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

April 7, 1989

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. YORK 89-8-M
Petitioner : A. C. No. 19-00970-05501
:
v. : Chelmsford Mill
:
POMERLEAU BROTHERS, INC., :
Respondent :

DECISION
ORDER TO PAY
Appearances: David L. Baskin, Esq., Office of the Solicitor, U. S. Department of Labor, Boston, Massachusetts, for Petitioner.
Before: Judge Merlin
This case is a petition for the assessment of three civil penalties filed by the Secretary of Labor against Pomerleau Brothers, Inc. At the hearing, the Solicitor advised that the parties had agreed upon settlement recommendations of all items for the originally assessed amounts. The Solicitor placed the recommendations on the record. The hearing in this matter took place at the same time as another case which was heard on the merits.
Citation Nos. 2853598 and 2853599 were issued for violations of 30 C.F.R. § 56.9087 and § 56.9011, respectively. Upon a review of the record, I am satisfied that the proposed single penalty assessments which are the original amounts are appropriate for these items.
Order No. 2853597 was issued for a violation of 30 C.F.R. § 56.9003 because the No. 35 Euclid truck had not been equipped with adequate brakes. The proposed settlement is for the $500 originally assessed penalty. MSHA found that the gravity of the violation was serious, because it created the danger of a haulage accident. The service brakes on the rear wheels did not function and the hand brake could not hold the empty truck on the ramp at the primary crusher. Under such circumstances the machine could have run out of control. In addition, the operator was negligent since a routine examination of the machine would have revealed this condition. The operator is small with no prior history. However, in view of the substantial degree of gravity and the

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existence of negligence, I conclude $500 is an appropriate penalty amount for this violation.
In light of the foregoing, the recommended settlements are APPROVED and the operator is ORDERED TO PAY $540 within 30 days

cc from the date of this decision.

Chief Administrative Law Judge
Distribution:
David L. Baskin, Esq., Office of the Solicitor, U. S. Department of Labor, John F. Kennedy Federal Building, Government Center, Room 1803, Boston, MA 02203 (Certified Mail) Pomerleau Brothers, Inc., Box 236, North Chelmsford, MA 01863 (Certified Mail)

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