FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 Pennsylvania Avenue, N.W., Suite 520N

Washington, D.C. 20004-1710

Telephone: (202) 434-9950

Fax: (202) 434-9949

May 10, 2013

ORDER OF NON-ACCEPTANCE

            On May 3, 2013, the parties submitted a Joint Motion to Approve Settlement and a draft Decision Approving Settlement (“DAS”). Because neither document provides all the pertinent information required by 29 C.F.R. §2700.31 for a motion to approve a settlement, the motion and proposed DAS cannot be accepted for filing. See §2700.31(f).

            The Secretary originally assessed a total of $31,488 in penalties for the 18 citations comprising this docket. Nine of the citations with their respective assessed penalties were accepted as issued by the Respondent, and another was vacated. Of the eight remaining citations, the Secretary agreed to remove the S&S designation in each; reduce the likelihood of injury to unlikely in seven; reduce the level of negligence in three; and reduce the number of people affected from six to five in one. For each citation, after stating the Respondent’s position, the motion declares that “[t]he Secretary states that he recognizes that they raise factual and legal issues which can only be resolved by a hearing before the Commission or by the parties reaching a compromise of the penalty proposed by the Secretary or by a modification of the characterization of the citation to reflect a lower level of gravity or negligence, or both.” However, he provides no concrete explanations for why he has agreed to lower the penalties and significantly reduce the severity of these violations.

            Further, comparing the citations with Respondent’s position regarding Citations 8521830 and 8522191, there do not appear to be any factual issues in contention. Moreover, the discussion of Citation 8521830 makes it appear that the MSHA inspector acted arbitrarily in requiring the tag to list the name of each person working on the equipment when this is what the cited regulation requires. In addition, Citation 8521830 initially was issued non-S&S, injury unlikely, and moderate negligence, but was amended to S&S, injury likely and high negligence less than two weeks later. Now the Secretary has agreed to revert to his initial determinations. It is essential that he provide a credible explanation for this turnaround. Finally, the discussion of Respondent’s position regarding Citation 8521831 is at best confusing and at worst incomprehensible; and the statement in the discussion of Citation 8523527 that there was no fire hazard because “the flashpoint of oil is not hot” appears nonsensical.

            Accordingly, the Joint Motion to Approve Settlement cannot be accepted. The parties may modify the motion and the draft DAS in accordance with this order and resubmit it for approval not later than June 17, 2013.

                                                                                    /s/ Jeffrey Tureck

                                                                                    Jeffrey Tureck

                                                                                    Administrative Law Judge

Distribution:

C. Renita Hollins, Esq., U.S. Department of Labor, Office of the Solicitor, 211 7^th Avenue North, Suite 420, Nashville, TN 37219

Damon J. Boiles, Esq., Drummond Company, Inc., P.O. Box 10246, Birmingham, AL 35202