Secretary of Labor v. R7 Enterprises, LLC

Plain-English summary

MSHA cited R7 Enterprises after finding excessive slack in a hydroseeding truck's steering components and an inoperative rear brake while the truck was in use at a surface coal mine. The inspector characterized the equipment violation as S&S, reasonably likely to cause a fatality, and attributable to high negligence, with a proposed $51,236 penalty. R7 asserted that its operator had discovered the defects the day before, employees had been told not to use the truck, and a mechanic arrived with repair parts before MSHA issued the citation. The parties agreed to reduce negligence from high to moderate and settle the penalty for $18,000. Judge David F. Barbour approved payment in three monthly $6,000 installments, with R7's admission limited to Mine Act proceedings.

Decision snapshot

• Cited standard: 30 C.F.R. § 77.404(a)
• Outcome: Negligence was reduced from high to moderate, and the $51,236 proposed penalty was settled for $18,000.
• Key point: Prompt repair preparations can support reducing negligence and penalty exposure even when unsafe equipment was found in use.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE: 202-434-9958
/ FAX: 202-434-9949

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

R7
ENTERPRISES, LLC,

Respondent

CIVIL
PENALTY PROCEEDING:

Docket
No. KENT 2013-357

A.C.
No. 15-18353-309799

Mine:
Frasure Creek Mining, LLC F-2

July 21, 2014

DECISION

Appearances:               J.
Malia Lawson, Esq.; Office of the Solicitor, U.S. Department of Labor,

618 Church Street, Suite 230, Nashville, TN  37219-2440 for Petitioner;

Mark
E. Heath, Esq.; Spilman, Thomas & Battle, PLLC; 300 Kanawha

Blvd., East, Charleston, WV  25301 for Respondent

Before:                        Judge
David Barbour

In this proceeding arising under the
Federal Mine Safety and Health Act, 30 U.S.C. 801 et seq. (2012) (Mine
Act or Act), the Secretary alleges that R7 Enterprises, LLC, (R7) violated mandatory
safety standard 30 C.F.R. 77.404(a), while preforming contract work at the F-2
Mine of Frasure Creek Mining, LLC.[1] The standard
requires that [“m]obile and stationary machinery and equipment shall be
maintained in safe operating condition and machinery or equipment in unsafe
condition shall be removed from service immediately.” 30 C.F.R. 77.404(a). The
Secretary asserts that on November 9, 2012, Mine Safety and Health
Administration Inspector Brian K. Robinson found that a hydroseeding truck had
excessive slack on its right steering tie rod end and on its short steering
arm. In addition, the truck’s right rear tandem brake was inoperative. The
truck, which was in use at the mine, was owned by R7 and was being operated by
one of its employees. The inspector cited R7 for the alleged violation. He
found that the violation was reasonably likely to cause a fatality, that the violation
was a significant and substantial contribution to a mine safety hazard and that
R7 was highly negligent in allowing the condition to exist. The Secretary
petitioned for the assessment of a civil penalty of $51,236 for the alleged
violation.

After the petition was filed, the
company answered essentially asserting the truck’s defects were discovered by
the company on November 8, 2012, that its employees were told not to operate
the truck until it was repaired, and that the mechanic arrived to repair the
truck on November 9, but before he could act, the inspector, who was on the
scene, issued the citation. The Commission’s chief judge assigned the case to
the undersigned who directed the parties to engage in discussions to determine
whether they could resolve their differences. When, after working with the
Commission’s settlement counsel, the parties reported they remained at
loggerheads, the undersigned scheduled the matter for hearing.

After a continuance due to a conflict on
the undersigned’s part, the parties agreed to go forward on June 17, 2014, in
Prestonsburg, Kentucky. Upon arriving in Prestonsburg on the evening of June
16, 2014, the undersigned found a message left at his hotel stating that the
parties settled the case. By e-mail, the undersigned asked counsels to proceed
to the courthouse in the morning and there to put the settlement on the record.[2]
The hearing convened as scheduled on the morning of June 17, and counsel for
the Secretary explained the settlement as follows:

Citation No.      Date    
30 C.F.R.    Proposed Penalty    Settlement Amount

8275983       11/9/12   77.4045(a)   $51,236                  $18,000

Counsel for the Secretary stated that
the parties agreed the inspector’s negligence finding should be modified from
high to moderate. Tr. 12. The bases for the agreement are assertions in R7's
answer that on November 8 the defects were discovered by the truck operator,
that the parts needed for the necessary repairs were picked up by R7's mechanic
the next morning, that he brought the parts to the mine, but that the inspector
cited the company before the truck could be repaired. Id. The parties also
agreed a total penalty of $18,000 was warranted and requested that it be paid
in three installments of $6,000 at 30 day intervals. Id. In addition,
counsel for R7 maintained that except for proceedings brought under the Mine
Act, the settlement does not represent an admission by the company that it
violated section 77.404(a). Tr. 13.

ORDER

The undersigned, who is loath to second
guess counsels, finds the settlement eminently reasonable. Tr. 13. Therefore
the settlement IS APPROVED. Within 30 days of the date of this decision,
R7 IS ORDERED to pay a total penalty of $18,000 for the violation in
question and to do so in three installments of $6,000, the first installment
being due 30 days from the date of this decision and the other two installments
being due at 30 day intervals thereafter.[3]
In addition, the settlement is approved with the understanding that R7 agrees
it violated section 77.404(a) for

Mine
Act purposes only and that its admission may not be used for proceedings under
any other act.

/s/ David F.
Barbour

David F. Barbour

Administrative
Law Judge

Distribution (Certified
Mail):

J.
Malia Lawson, Esq., Office of the Solicitor, U.S. Department of Labor, 618
Church Street, Suite 230, Nashville, TN  37219-2440

Mark
E. Heath, Spilman Thomas & Battle, PLLC, 300 Kanawha Boulevard, East, Post
Office Box 273, Charleston, WV 25321-0273

Ryan
Risner, Owner/Manager, R7 Enterprises, LLC, HC 88 Box 119, Gunlock, Kentucky  41632

/db

[1] The mine is a surface coal mine
located in Floyd County, Kentucky.

[2] Due to fiscal constraints under
which his client was operating, counsel for R7 requested permission to enter an
appearance telephonically sparing his client time and travel expenses. There
being no objection from counsel for the Secretary, the undersigned agreed. Tr.
10.

[3] Payment shall be sent to: Mine
Safety and Health Administration, U.S. Department of

Labor,
Payment Office, P.O. Box 790390, St. Louis, Missouri 63197-0390.