El Paso Sand Products, Inc.

Plain-English summary

El Paso Sand Products proposed to settle six civil penalty proceedings involving 23 alleged violations for $6,626.25, compared with initial assessments totaling $8,835. The ALJ found that the parties' boilerplate descriptions of low negligence and low exposure conflicted with the inspection records, which described miners exposed to serious hazards and one miner who suffered severe arm injuries in a conveyor incident. He approved the CENT 88-53-M settlement, tentatively approved CENT 88-79-M and CENT 88-104-M subject to more information, and rejected the proposed settlements in CENT 88-65-M, CENT 88-83-M and CENT 88-141-M pending amended submissions. The parties were ordered to provide clearer explanations of the penalty criteria and allocate lump-sum settlement amounts among individual violations.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.14003, 56.14029, 56.9022, 56.11001, 56.12032, 56.20003, 56.20011, 56.14001, 56.3131, 56.4201(5)(b), 56.12028, 56.16006, 56.12030, 56.15005, 56.3200, and 56.6001
• Outcome: One settlement was approved, two were tentatively approved subject to more information, and three were rejected subject to refiling.
• Key point: Settlement proposals must explain penalty reductions in light of the actual gravity and negligence evidence and must allocate lump-sum amounts by violation.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V: EL PASO SAND
DDATE:
19890209
TTEXT:

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. CENT 88-53-M
PETITIONER A.C. No. 41-00046-05520

      v.                             Docket No. CENT 88-65-M
                                     A.C. No. 41-00046-05521

EL PASO SAND PRODUCTS, INC.,
RESPONDENT Docket No. CENT 88-79-M
A.C. No. 41-00046-05522

                                     Docket No. CENT 88-83-M
                                     A.C. No. 41-00046-05523

                                     Docket No. CENT 88-104-M
                                     A.C. No. 41-00046-05524

                                     Docket No. CENT 88-141-M
                                     A.C. No. 41-00046-05525

                                     El Paso Quarry & Plant

           ORDERS REJECTING PROPOSED SETTLEMENTS

               Statement of the Proceedings

 These proceedings concern proposed civil penalty assessments

filed by the petitioner against the respondent pursuant to
section 110(a) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. 820(a). The petitioner is seeking civil penalty
assessments in the amount of $8,835.00, for 23 alleged violations
of certain mandatory safety and health standards found in Part
56, Title 30, Code of Federal Regulations.

 These cases were docketed for hearing in El Paso, Texas,

during the hearing term January 10-12, 1989. However, the
hearings were continued and cancelled after the parties informed
me that they had reached a proposed settlement in all of the
cases. The parties have now filed motions seeking approval of the
proposed settlements, the terms of which require the respondent
to pay civil penalty assessments in the amount of $6,626.25, in
settlement of all of the alleged violations. The alleged
violations, initial proposed civil penalty

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assessments, and the proposed settlement amounts are as
follows:

DOCKET NO. CENT 88-53-M

                        30 C.F.R.

Citation No. Date Section Assessment Settlement

3060567 06/24/87 56.14003 $345 $258.75

DOCKET NO. CENT 88-65-M

                        30 C.F.R.

Citation No. Date Section Assessment Settlement

2869424 04/23/87 56.14029 $126 $ 94.50

DOCKET NO. CENT 88-79-M

                        30 C.F.R.

Citation No. Date Section Assessment Settlement

3060786 01/11/88 56.9022 $178 (Total of
3060788 01/12/88 56.11001 $ 79 $370.50 for
3060789 01/12/88 56.12032 $ 79 all citations)
3060793 01/12/88 56.20003 $ 79
3060795 01/12/88 56.20011 $ 79

DOCKET NO. CENT 88-83-M

                        30 C.F.R.

Order No. Date Section Assessment Settlement

3060996(A) 10/15/87 56.14001 $1,000 (Total of
3060996(B) 10/15/87 56.14029 $1,000 $3,765 for all
3060785 01/11/88 56.3131 $1,000 citations)
3060790 01/12/88 56.4201(5)(b) $ 20
3060847 02/17/88 56.3131 $2,000

DOCKET NO. CENT 88-104-M

                         30 C.F.R.

Citation No. Date Section Assessment Settlement

3060571 06/25/87 56.12028 $ 20 (Total of
3060791 01/12/88 56.16006 $ 79 $262.50 for
3062861 03/01/88 56.12030 $ 36 all citations)

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3062862 03/01/88 56.12030 $ 20
3062863 03/01/88 56.12030 $ 36
3062864 03/01/88 56.11001 $ 68
3062865 03/01/88 56.9002 $ 91

DOCKET NO. CENT 88-141-M

Citation/ 30 C.F.R.
Order No. Date Section Assessment Settlement

3062866 03/01/88 56.15005 $1,000 (Total of
3062867 03/01/88 56.9022 $ 500 $1,875 for all
3062868 03/01/88 56.3200 $ 600 citations)
3062869 03/01/88 56.6001 $ 400

 After review and consideration of the motions filed by

the parties, and for the reasons which follow below, I have
approved one of the proposed settlements (Docket No.
CENT 88-53-M), tentatively approved two of the proposed settle-
ments (Docket Nos. CENT 88-79-M and CENT 88-104-M), subject to
the filing of additional information, and I have rejected
three of the proposed settlements (Docket Nos. CENT 88-53-M,
CENT 88-83-M, and CENT 88-141-M), subject to their re-filing
with additional information.

                          Discussion

 The Commission's Rules concerning proposed settlements are

found at 29 C.F.R. 2700.30, and they provide as follows:

        (a) General. No proposed penalty that has been
        contested before the Commission shall be compromised,
        mitigated, or settled except with the approval of the
        Commission after agreement by all parties to the
        proceeding.

        (b) Contents of settlement. A proposal that the
        Commission approve a penalty settlement shall include
        the following information for each violation involved;
        (1) the amount of the penalty proposed by the Office of
        Assessments of the Mine Safety and Health
        Administration; (2) the amount of the penalty proposed
        by the parties to be approved; and (3) facts in support
        of the appropriateness of the penalty proposed by the
        parties.

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(c) Order approving settlement. Any order by the Judge approving
a proposed settlement shall be fully supported by the record. In
this regard, due consideration, and discussion thereof, shall be
given to the six statutory criteria set forth in section 110(i)
of the Act. Such order shall become the final decision of the
Commission 40 days after approval unless the Commission has
directed that such approval be reviewed. [Emphasis added.]

 In support of the proposed settlements and reductions of the

initial proposed civil penalty assessments for each of the
violations in issue, the parties rely in part on the following
"boilerplate" argument which is included in each of the motions
filed in these cases:

      There was little or no negligence involved, since the
      violations could not have been reasonably predicted.

      Probability of injury was overevaluated since very few
      employees were exposed to the risk, these employees
      were not, during the normal course of their work,
      exposed to the risk with any great frequency, these
      employees were not in the zone of danger, and the
      employees were not working under stress or where their
      attention would be distracted. (Emphasis added).

 A review of MSHA's initial pleadings, including the

citations/orders, and the "narrative findings" by MSHA's Office
of Assessments, reflects the following:

Docket No. CENT 88-65-M

 Section 104(a) Citation No. 2869424. The citation states

that a miner became entangled in the tail pulley of a conveyor
belt while it was in motion, and that he suffered severe injuries
to his left arm. It also states that the plant operator could not
observe the miner and that the miner was entrapped between the
pulley, belt, and support structure until he was rescued by
another miner. The inspector found that permanently disabling
injuries occurred. The violation was issued because of the
failure to shut off the machine or to otherwise block it against
motion.

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Docket No. CENT 88-83-M

 Imminent Danger Order No. 3060996(A & B). The order and

narrative findings made by MSHA's assessment officer reflects
that an employee was shoveling up spillage from under an
unguarded conveyor tail pulley, and that the shovel was within 4
inches of the pulley, and the miner was within 1 foot of the
pulley. This work was being performed while the machine was in
motion and the power on. The inspector found that the employee's
exposure to the unguarded pulley pinch point would highly likely
result in permanently disabling injuries, and that the violations
were the result of a high degree of negligence by the respondent.

 Imminent Danger Order No. 3060785. This order was issued on

January 11, 1988. The inspector observed a loader operator and
two haulage units working at and near the base of a pit highwall
approximately 60 to x feet high, and the highwall contained
"loose boulders and unconsolidated materials above the employees
and equipment." The inspector found that the cited conditions
would highly likely result in fatalities, and that the violation
resulted from a high degree of negligence.

 Imminent Danger Order No. 3060847. This order was issued on

February 17, 1988, after the inspector observed a front-end
loader and two haul trucks loading materials from the base of an
80 to 90 foot highwall. The loader was observed operating
directly below loose materials located approximately 60 to 70
feet from the base of the highwall. The inspector took note of
the fact that this violative condition took place in the same
area where he issued the previous January 11, 1988, order, and he
concluded that fatal injuries were highly likely. The inspector
made a negligence finding of "Reckless Disregard."

Docket No. CENT 88-141-M

 Imminent Danger Order No. 3062866. This order was issued by

the inspector after he observed a drill operator working on top
of a 40-foot highwall within 2 feet of the edge of the highwall,
and the drill helper walking around the front of the drill within
approximately 16 inches from the edge of the highwall. Neither
employee was wearing a safety belt or line, and the inspector
concluded that they were in danger of falling off the highwall,
and that it was highly likely that a fatality would occur.

 Unwarrantable Failure Citation No. 3062867. This citation

was issued at 2:40 p.m., on March 1, 1988, after the

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inspector observed that the outer edge of a roadway approaching
the "upper-most bench" of the quarry was not bermed or guarded
with guardrails to prevent vehicles using the roadway from
dropping off of the 40 to 100 foot "drop off." The roadway was
used to haul explosives to the top of the hill, and other
vehicles and equipment also used the roadway, including a truck
used to transport two drill operators to the top of the bench.
The inspector noted that the superintendent admitted that he had
inspected the area at 6:30 a.m., on the same day the violation
was issued, and that the roadway was not bermed or otherwise
guarded. The inspector also found that permanently disabling
injuries were highly likely. The inspector found that the
violation resulted from a high degree of negligence.

 Unwarrantable Failure Order No. 3062868. This order was

issued by the inspector at 2:45 p.m., on March 1, 1988, after he
observed two drillers drilling and travelling the upper bench of
the quarry where loose boulders were "hanging on the wall" which
was approximately 30 to 40 feet high. The inspector noted that
some boulders had fallen off the face of the highwall from
vibration from a nearby blast. The inspector found that
permanently disabling injuries were highly likely, and that the
violation resulted from a high degree of negligence.

 Unwarrantable Failure Order No. 3062869. The order was

issued after the inspector found two blasting caps in an office
desk drawer of an employee. The inspector found that permanently
disabling injuries were reasonably likely, and that the violation
was the result of a high degree of negligence.

 Contrary to the assertions by the parties that no employees

were "in the zone of danger," the aforementioned information with
respect to each of the violations reflects that miners were
directly exposed to hazards, and that one miner suffered serious
disabling injuries to his arm when it was caught in a moving
conveyor belt. Further, the assertion that employees were not
exposed to any risk "with any great frequency" is irrelevant.
From a gravity point of view, the issue is whether or not any
employee was exposed to any hazard, regardless of its frequency.
For example, the employee who caught his arm in a moving conveyor
may have only been exposed to a risk on this one occasion, but
the result was disastrous.

 With regard to the question of negligence, the unexplained

assertions by the parties that there "was little

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or no negligence" is totally without foundation. The inspectors
found that the violations noted above were the result of a high
degree of negligence, and in one case, the inspector made a
negligence finding of reckless disregard.

 I have reviewed the answers filed by the respondent in each

of these cases, including the defenses advanced with respect to
each of the violations. If the parties believe that these
defenses have merit, or should be considered by the judge in
mitigation of the civil penalties, it is incumbent on the parties
to place these arguments clearly and succintly before the judge
for his consideration. Reliance on boilerplate contradictory
language that bears no rational or reasonable relationship to the
particular facts of a case is simply unacceptable, and I will
continue to reject such submissions in support of proposed
settlements. In this regard, this is not the first time I have
rejected a proposed settlement filed by the Dallas Regional
Solicitor's Office based on the identical language used in these
cases. See: Secretary v. Boorhem-Fields, Incorporated, Docket No.
CENT 88-56-M, August 29, 1988, Order Rejecting Proposed
Settlement.

 Apart from the gravity and negligence contradictions noted

above, the Commission's rules governing proposed settlements
requires the judge to consider and discuss all information with
respect to the civil penalty criteria found in section 110(i) of
the Act. The failure by the parties to submit clear and complete
information to the judge as part of their submissions in support
of any settlement puts the judge in the untenable position of
attempting to decipher MSHA's civil penalty "point system." In
these cases, the parties have failed to provide any narrative
discussion with respect to the section 110(i) criteria concerning
the respondent's size, good faith abatement, or history of prior
violations. They simply state that they have reviewed and
reconsidered the operator's size, good faith, and prior history
of violations, but have failed to advance any arguments or
conclusions as to how this information may impact on the proposed
settlements or civil penalty assessment reductions. They simply
refer me to "Exhibit A to the Complaint." It is incumbent on the
parties,and not the judge, to extrapolate this information, and
to submit it in some meaningful narrative form.

 With regard to Docket Nos. CENT 88-79-M, CENT 88-83-M, CENT

104-M, and CENT 88-141-M, the proposed settlement amounts for
each of the violations are lumped together in one lump sum.
Commission Rule 30(b), 29 C.F.R. 2700.30, requires the parties
to submit a proposed settlement amount for each violation. Again,
it is incumbent on the parties, not the judge,

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to prorate or allocate the specific amounts to be assessed for
each individual violation, and unexplained lump sum proposals are
simply unacceptable.

                CONCLUSIONS AND ORDERS

 In view of the foregoing, I make the following dispositions

of these cases:

 1. Docket No. CENT 88-53-M. I will approve the proposed

settlement of this case, and a separate dispositive decision will
follow.

 2. Docket Nos. CENT 88-79-M and CENT 88-104-M. The proposed

settlements in these cases are tentatively approved, subject to
the submission and receipt of further information from the
parties with respect to the section 110(i) civil penalty criteria
concerning the respondent's size, good faith abatement, history
of prior violations, and the allocation of the specific
settlement amounts for each of the violations. Upon receipt of
this information, I will issue further dispositive decisions.

 3. Docket Nos. CENT 88-65-M, CENT 88-83-M, and CENT

88-141-M. The proposed settlements in these cases are rejected,
subject to their re-filing. The parties ARE ORDERED to resubmit
amended motions with a full discussion and explanation clarifying
or justifying the proposed penalty reductions in light of the
apparent gravity and negligence contradictions noted herein. The
parties ARE FURTHER ORDERED to submit a discussion concerning the
civil penalty criteria with respect to the respondent's size,
good faith abatement, history of prior violations, and the
allocation of the specific settlement amounts for each of the
violations.

 The parties ARE FURTHER ORDERED to submit all of the

aforementioned information to me within thirty (30) days of the
receipt of these Orders.

                         George A. Koutras
                         Administrative Law Judge