<DOC>
[DOCID: f:ct98268o.wais]

 
BOWEN INDUSTRIES, INCORPORATED
April 26, 1999
CENT 98-268-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 1730 K STREET, N.W., 6TH FLOOR
                  WASHINGTON, D.C.  20006-3868


                         April 26, 1999

SECRETARY OF LABOR             :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH       :
  ADMINISTRATION (MSHA),       :  Docket No. CENT 98-268-M
               Petitioner      :  A. C. No. 29-01882-05502 LUO
                               :
          v.                   :
                               :
BOWEN INDUSTRIES               :
  INCORPORATED,                :  Ivanhoe Concentrator
               Respondent      :

                       ORDER LIFTING STAY
                DECISION DISAPPROVING SETTLEMENT
                   ORDER TO SUBMIT INFORMATION

Before:  Judge Merlin

     On  December 8, 1998, this case was stayed pending a final
determination  by  the  Secretary whether to pursue actions under
Section 110(c).  The parties  have  now  filed  a joint motion to
approve  settlement.  Therefore, the stay previously  entered  is
hereby LIFTED.

     The parties' settlement  motion  seeks a penalty reduction
for the one violation involved from $1,600 to $188.

     Aside  from  the substantive deficiencies discussed infra, I
would not approve this  motion.   The motion was signed and filed
by an individual who styles herself as a law clerk.  Although the
motion  contains  the names  of  three  Solicitors  in  ascending
degrees of responsibility,  none  of  them has signed the motion.
Commission  Rule  2700.3,  29  C.F.R. � 2700.3,  sets  forth  the
individuals and categories of individuals  who  are  permitted to
practice before the Commission.  Under subparagraph (a) attorneys
are  permitted  to  practice  and  under  subparagraph (b) a  non
attorney  may  practice  if  he  is a party, a representative  of
miners   or  certain  designated  individuals   associated   with
specified  entities.   The  individual  who  signed and filed the
settlement motion in this case is not an attorney  and is not one
of  the  described  non  attorneys  allowed to appear before  the
Commission.   Subparagraph  (c)  permits   any  other  person  to
practice  with  the  approval  of  the  presiding  judge  or  the
Commission.  My approval has not been sought  for  the appearance
of the individual in question.

     This  purported  filing  from  the  Dallas  Office  of   the
Solicitor is in contrast to procedures previously followed by the
national  Office  of  the Solicitor in seeking permission for non
attorneys to appear before  the  Commission.    In 1994, when the
Office of the Solicitor wished to have Conference  and Litigation
Representatives (CLR) appear on behalf of the Secretary  in  mine
safety  cases,  information  was furnished regarding the training
and credentials of these individuals.   Cyprus  Emerald Resources
Corp., 16 FMSHRC 2359 (November 1994).  Thereafter, in every case
where  a CLR wishes to represent the Secretary, he  has  filed  a
motion for  permission to appear.  When a supplemental settlement
motion is filed in this case, as ordered infra, it must be signed
by an attorney  in  the Office of the Solicitor or it will not be
approved.

     The subject citation  was  issued under section 104(d)(1) of
the  Mine  Act  for a violation of 30  C.F.R.  �  56.11027  which
provides:

           Scaffolds and working platforms shall be of substan-
     tial construction  and  provided  with handrails and
     maintained in good condition. Floor boards shall be
     laid  properly and the scaffolds and working  platforms
     shall not  be  overloaded.  Working  platforms shall be
     provided with toeboards when necessary.

     The citation describes the alleged violation as follows:

          Bowen  Industries,  Inc. a sub-contractor  at  the
     plant failed to provide adequate scaffolds for em-
     ployees to use when installing a iron beam on a wall
     at the maint-shop.  Employee  was observed standing on
     top of scaffold railing trying to reach the iron beam
     to weld on.  The employee did have his safety wear, but
     was secured 4/5 foot below him for security, exposing
     the employee to a potential fall hazard if accidentally
     slipping  and  falling.  The company inspector Lillian
     Medina had warned the employees on  4-9-98 of them not
     using the proper scaffolding and stopped operations
     until proper scaffolding was erected to continue the
     operations.

          Employees admitted that Ms. Medina had warned them
     of not following company safety policies  and needed to
     erect a proper platform.

     The inspector subsequently modified the citation  to add the
following information to the condition or practice:

          Supervisor and employees knew of inadequate scaffold,
     the company safety  inspector on 04-09-1998 stopped  the
     operation  on  welding informing employee that they needed
     an adequate work  platform to work off or to extend scaf-
     folding.  Employee  elected not to fix work  platform.
     This  violation  is  an unwarrantable failure.

     The standard sets forth requirements for the construction of
scaffolds  and  working  platforms,  mandating that  they  be  of
substantial construction with handrails  and  properly laid floor
boards and where necessary, with toeboards.  Also  they  must not
be  overloaded.   The  citation, however, does not find that  the
scaffold was improperly  constructed,  lacked  any  of  the items
described, or was overloaded.  Rather, it found the scaffold  was
inadequate  because  the  employee  was  standing  on  top of the
scaffold's  railing  trying  to  reach  an I-beam.  The condition
described by the inspector therefore, had  nothing to do with the
scaffold itself but with its location.  The  problem  was  one of
safe  access  to  the  I-beam  and  not  any  deficiencies in the
characteristics of the scaffold.  Accordingly, it does not appear
that the standard cited applies to the situation set forth in the
citation.    The   parties  must  address  this  issue   in   the
supplemental motion.

     Even assuming the  cited  standard  applies,  the settlement
motion  is  deficient.   The  motion  merely states that  further
investigation reveals the degree of negligence  and likelihood of
injury  should  be  modified.   It  alleges  that  upon   further
investigation  the Secretary has determined there is insufficient
evidence to support  the conclusion that the operator knew of the
violation.  This allegation  is  contrary to the citation and its
modification  which  expressly  state   that   just  a  few  days
previously   the   company   inspector   found  employees   using
scaffolding  that  did  not reach and told them  the  scaffolding
should be extended.  If true, this prior misconduct by  employees
called for heightened supervision by the operator.  In any event,
the representations in the  motion  must  be  reconciled with the
statements in the citation and if the citation  is  in error, the
motion must say so.

     The motion also represents that gravity should be  less than
originally  found  because  the  employee  was  wearing  a safety
harness.  But the citation recognizes that although a harness was
worn,  it  was  tied  off  at  the  wrong place.  The motion must
identify  those  factors  which  justify  a  finding  of  reduced
gravity.

     Finally, the motion seeks a penalty  reduction  of 85% and a
modification  of the citation to one issued under section  104(a)
citation, but the  generalized  and unsupported statements in the
motion do not justify such actions.   The  motion states that the
operator's size, history and good faith have  been  reviewed  and
are  set  forth in Exhibit A to the penalty petition.  A printout
attached to  the assessment sheet indicates that the operator had
two violations  in  July  and one violation in September, but the
number of inspection days is  not  given so I do not know whether
this  is  a  good, average or bad history.   Also,  there  is  no
information about  size and ability to continue in business.  The
Commission has held that the judge must consider all six criteria
when assessing a penalty.   Sec.  of  Labor  on  behalf  of James
Hyles, et al. v. All American Asphalt, 21  FMSHRC 34, 56-57 (Jan.
1999); Sec. Labor on behalf of Kenneth Hannah,  et  al.  v.  Con-
solidation  Coal  Co.,  20  FMSHRC 1293, 1302-1303 (Dec. 1998);
Sec. Labor on behalf of Richard  Glover v. Consolidation Coal Co.,
19 FMSHRC 1529, 1539 (Sept 1997).

     In light of the foregoing, it is ORDERED that the motion for
approval of settlement be DENIED.

     It is further ORDERED that within 30 days of the date of
this order the Solicitor and the operator submit appropriate
information to support their settlement request.  Otherwise,
this case will be set for hearing.


                           Paul Merlin
                           Chief Administrative Law Judge

Distribution:  (Certified Mail)

Tom Mascolino, Esq., Office of the Solicitor, U. S. Depart-
ment of Labor, Room 420, 4015 Wilson Boulevard, Arlington,
VA 22203

Raquel Tamez, Office of the Solicitor, U. S. Department of
Labor,  525 Griffin Street, Suite 501, Dallas, TX 75202

Mr. Alfredo Ontiveros, Safety Director, Bowen Industries
Incorporated, 9801 Carnegie Avenue, El Paso, TX 79925

/gl


Mr. Alfredo Ontiveros, Safety Director,Bowen Industries,
Incorporated, 9801 Carnegie Avenue, El Paso, TX 79925


                     FEDERAL MINE SAFETY AND
                    HEALTH REVIEW COMMISSION
                   1730 K STREET NW, 6TH FLOOR
                  WASHINGTON, D.C.  20006-3868

Tom Mascolino, Esq., Office of the Solicitor, U. S. Depart-
ment of Labor, Room 420, 4015 Wilson Boulevard, Arlington,
VA  22203


Raquel Tamez, Office of the Solicitor,U. S. Department of
Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202