<DOC>
[DOCID: f:w-94-560.wais]
FMC WYOMING CORPORATION
May 2, 1996
WEST 94-560-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3993/FAX 303-844-5268
May 2, 1996
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 94-560-M
Petitioner : A.C. No. 48-00152-05636
:
v. :
: FMC Trona Mine
FMC WYOMING CORPORATION, :
Respondent :
DECISION
Appearances: Robert Cohen, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Petitioner;
Matthew F. McNulty, III, Esq., Van Cott, Bagley,
Cornwall & McCarthy, P.C., Salt Lake City, Utah,
for Respondent.
Before: Judge Cetti
This case is before me upon a petition for assessment of
civil penalties under section 105(d) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. � 801 et seq. the "Act." The
Secretary of Labor on behalf of the Mine Safety and Health
Administration, (MSHA), charges the Respondent, FMC Wyoming
Corporation (FMC), the operator of the Trona Mine with two
violations of 30 C.F.R. � 57.14213 which require use of arc
shields when arc welding is performed where persons could be
exposed to the arc flash. [1]
Respondent filed a timely answer contending there was no
violation. Pursuant to notice to the parties, the matter was set
for hearing on April 2, 1996, at Salt Lake City.
During the hearing, the parties on the record entered into a
settlement agreement. It is undisputed that the inspector came
by and saw a momentary arc flash that was promptly abated in each
case. The operator, explaining why the matter had not been set-
tled prior to hearing, stated that representatives of the local
union felt the union welders involved were not violating the
standard and were urging the operator not to settle the case.
The operator requested the record to reflect that it is not ad-
mitting a violation but for "litigation purposes" is agreeing to
a settlement of the issues involved in this case. Under the
proffered agreement, FMC will pay a $50.00 civil penalty for each
of the alleged violations.
Upon review of the record, including the information given
at the hearing, I conclude the settlement agreed upon on the
record at the hearing is consistent with the criteria in section
110(i) of the Act.
ORDER
Accordingly, Citation No. 3906527 is AFFIRMED as written and
a penalty of $50.00 is assessed.
Citation No. 4405824 is AFFIRMED as written and a penalty of
$50.00 is assessed.
It is further ORDERED that FMC Wyoming Corporation PAY the
approved civil penalties in the sum of $100.00 to the Secretary
of Labor within 30 days of this decision. Upon receipt of pay-
payment, this case is dismissed.
August F. Cetti
Administrative Law Judge
Distribution:
Robert Cohen, Esq.,
Office of the Solicitor,
U.S. Department of Labor,
4015 Wilson Boulevard,
Arlington, VA 22203
(Certified Mail)
Matthew F. McNulty, III, Esq.,
VAN COTT, BAGLEY, CORNWALL & McCARTHY,
P.C., 50 South Main Street, Suite 1600,
P.O. Box 45340,
Salt Lake City, UT 84145
(Certified Mail)
/sh
**FOOTNOTES**
[1]: Originally this docket included 2 other citations
charging violations involving methane monitoring and methane
levels. Those citations were bifurcated into Docket No. WEST
94-560-M-A and previously resolved by my Decision Approving
Settlement.