Northern Aggregates (ALJ decision, November 30, 2012)

Plain-English summary

MSHA cited Northern Aggregates for a training violation and specially assessed a $1,500 penalty. In settlement, the Secretary stated that the cited worker was a service worker employed by another company rather than a miner and that the citation and inspector's notes did not address that issue. The parties agreed to replace the new-miner training standard with the site-specific hazard-awareness standard, reduce the likelihood and severity findings, and remove the significant and substantial designation. Chief Judge Robert J. Lesnick approved the settlement and reduced the penalty to $100.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 46.5(a) and 46.11(b)
• Outcome: The settlement was approved, the citation was modified, and the penalty was reduced from $1,500 to $100.
• Key point: A worker's status can change which Part 46 training requirement applies and materially affect the assessment.

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

                                     November 30, 2012

SECRETARY OF LABOR : CIVIL PENALTY PROCEEDING MINE SAFETY AND HEALTH : ADMINISTRATION (MSHA), : Docket No. LAKE 2012-81-M
Petitioner : A.C. No. 12-02442-268053
:
v. :
:
NORTHERN AGGREGATES, : Mine: Monon Quarry
Respondent

                       ORDER ACCEPTING APPEARANCE
                      DECISION APPROVING SETTLEMENT
                             ORDER TO MODIFY
                               ORDER TO PAY

Before: Judge Lesnick

   This case is before me upon a petition for assessment of a civil penalty under section

105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d).

    The Secretary of Labor’s Conference and Litigation Representative (“CLR”) filed a

notice of limited appearance with the penalty petition. It is ORDERED that the CLR be accepted to represent the Secretary. Cyprus Emerald Res. Corp., 16 FMSHRC 2359 (Nov. 1994).

    The CLR has filed a motion to approve settlement. A reduction in the penalty from

$1,500.00 to $100.00 is proposed. The CLR states that, given the record, the citation at issue did not warrant a special assessment. In support of this reduction, the CLR states that “[u]pon further review of the facts surrounding the cited condition [in Citation No. 6496560], Petitioner concedes that a regular assessment under [30 C.F.R.] § 100.3 is more appropriate.” Specifically, the CLR notes the Respondent’s assertion that “the worker cited was not a miner under the definition contained in 30 CFR 46.2(g), but a service worker employed by Scott’s Landscape Management. This issue is not addressed in the citation or the inspector’s notes[,] and the inspector is now deceased.” In light of this information, the CLR requests that Citation No. 6496560 be modified to reduce the likelihood of injury or illness from “reasonably likely” to “unlikely,” and the severity from “fatal” to “permanently disabling;” and to delete the significant and substantial designation.

    The CLR also requests that the citation be amended as to the standard that was violated,

from 30 C.F.R. § 46.5(a), covering new miner training, to 30 C.F.R. § 46.11(b), which requires site-specific hazard awareness training to be provided to “any person who is not a miner.”

    I have considered the representations and documentation submitted in this case.

Although the magnitude of the proposed reduction in penalty is large, I note that it is consistent with the Secretary’s broad discretion in administering her Part 100 regulations. Section 100.5 of those regulations states in relevant part: “MSHA may elect to waive the regular assessment under § 100.3 if it determines that conditions warrant a special assessment.” 30 C.F.R.
§ 100.5(a). Here, the Secretary reconsidered a determination that the cited conditions warranted a special assessment, which was consistent with the broad discretionary authority set forth in section 100.5(a).

    I also find that the settlement motion proffered by the Secretary and agreed to by the

Respondent is fully supported by the particular facts set forth in the motion. My authority to review settlement agreements filed by the Secretary and mine operators is found at section 110(k) of the Act, which provides in relevant part: “No proposed penalty which has been contested before the Commission under section 105(a) shall be compromised, mitigated, or settled except with the approval of the Commission.” 30 U.S.C. § 820(k). The Commission has held that section 110(k) “directs the Commission and its judges to protect the public interest by ensuring that all settlements of contested penalties are consistent with the Mine Act’s objectives.” Knox County Stone Co., 3 FMSHRC 2478, 2479 (Nov. 1981).

    Although I am not bound by the Secretary’s exercise of her discretion under the Part 100

regulations, Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 678-679 (Apr. 1987), in the context of the instant settlement agreement, I find it appropriate to defer to the judgment of the parties in arriving at an agreement that is consistent with those regulations and the factual bases for the change in the assessment formula used by the Secretary in proposing the penalties set forth in her motion. Particularly in light of the facts provided by the Secretary, I conclude that the proffered settlement is appropriate under the criteria set forth in section 110(i) of the Act and “consistent with the Mine Act’s objectives.” Knox County, 3 FMSHRC at 2479.

   WHEREFORE, the motion for approval of settlement is GRANTED.

    It is ORDERED that Citation No. 6496560 be MODIFIED to reduce the likelihood of

injury or illness from “reasonably likely” to “unlikely,” and the severity from “fatal” to “permanently disabling;” to delete the significant and substantial designation; and to identify 30 C.F.R. § 46.11(b) as having been violated, rather than 30 C.F.R. § 46.5(a) as set forth in the citation.

    It is further ORDERED that the operator pay a penalty of $100.00 within thirty days of

this order.1

                                        /s/ Robert J. Lesnick
                                        Robert J. Lesnick
                                        Chief Administrative Law Judge

Distribution:

Zachary J. Bossenbroek, Bossenbroek Law, PLLC, 2855 44th Street SW, Suite 120, Grandville, MI 49418

Dan L. Venier, Conference and Litigation Representative, U.S. Department of Labor, MSHA, 515 West First Street, Duluth, MN 55802

/tas

   1
   Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S.

DEPARTMENT OF LABOR, PAYMENT OFFICE, P.O. BOX 790390, ST. LOUIS, MO 63179-0390