Secretary of Labor v. Solar Sources, Inc. (ALJ decision, November 29, 2017)

Read the official release (fmshrc.gov)

Plain-English summary

A miner fell nearly 14 feet from an end-dump truck after an obstructing rope caught his hard hat and a severely corroded handrail chain broke. MSHA specially assessed one of three related citations at $68,300, but the parties proposed replacing that amount with a $4,548 regular assessment and settling all three citations for $13,644 instead of $77,396. Judge William B. Moran found that the motion supplied no facts explaining why MSHA's special-assessment process should be discarded while the citation's gravity and negligence findings remained unchanged. After the Secretary declined requests for the inspector's notes and photographs, the Judge denied settlement and directed the case toward hearing or a better-supported motion. The Commission later reversed the denial and approved the settlement.

Decision snapshot

• Cited standard: 30 C.F.R. § 77.1101(c)
• Outcome: The proposed $13,644 settlement was denied and the case was directed toward hearing.
• Subsequent review: The Commission reversed and approved the agreement in lake-2017-52-commission.
• Key point: The Judge required specific factual support before replacing a special assessment with a much lower regular assessment, an approach the Commission later rejected on review.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW

COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania

Avenue, NW, Suite 520N

Washington, DC

20004-1710

Phone: (202) 434-9933

| Fax: (202) 434-9949

SECRETARY

OF LABOR,                                :     CIVIL PENALTY PROCEEDING

MINE

SAFETY AND HEALTH                      :

ADMINISTRATION

(MSHA),                        :     Docket No. LAKE 2017-0052

Petitioner,                          :     A.C.

No. 12-02372-422572

v.                                                   :    

:    

SOLAR

SOURCES, INC.,                                  :     Mine: Antioch Mine

Respondent.                      :

DECISION DENYING MOTION TO

APPROVE SETTLEMENT

Before: Judge

Moran

This

case is before the Court upon a petition for assessment of a civil penalty

under section 105(d) of the Federal Mine Safety and Health Act of 1977. The

docket involves    three citations, with each relating to an accident which

occurred on July 25, 2017 when a   miner fell nearly 14 feet, while trying to

exit the cab of the equipment he had been operating.      The Secretary has

filed a motion to approve settlement. The originally assessed overall amount,

as set forth in the Secretary of Labor’s Petition for the Assessment of a

Penalty, was $77,396.00, an amount derived in large measure through MSHA’s

special assessment provision to one of the three citations. The proposed

settlement is $13,644.00, which is more than an 82% penalty reduction. 

Here,

the Secretary simply discarded the special assessment of its client, MSHA, and

reverted to the Part 100 regular assessment formula to arrive at the $13,644.00

figure. However, the Secretary provided no facts to support the change. Borrowing

from it tack in settlements of all stripes, to wit, the Secretary of Labor need

not explain its settlements to anyone, he now extends this authoritarian

approach to his client’s special assessments. This attitude may come as a

surprise to Congress, as it would seem that august body does not include

statutory provisions idly, especially where that legislative branch of

government provided, regarding settlements, that “[n]o proposed penalty which

has been contested before the Commission under section 815(a) of this title

shall be compromised, mitigated, or settled except with the approval of the

Commission.” 30 U.S.C. § 820(k). To be clear, this matter is before the

Commission.

In

view of the fact that the Secretary’s 82% reduction offers no facts to support

its settlement – indeed, the Secretary expressly refused to provide facts

requested by the Court, the settlement motion is DENIED . The Secretary

is directed to make himself available for a conference call, so that this

matter may be set for a prompt hearing.

Background

As

noted, three Section 104(a) are involved in this docket. Citation Nos. 9102709

and 9102711 are settled at the amounts originally proposed – each at $4,548.00.

However, the other citation, No. 9102710, was specially assessed at $68,300 and

now the Secretary seeks to have that citation reduced to the same $4,548

assessed for the others. Thus, for the one specially assessed citation, the

reduction is more than 93%.

Before

focusing on the citation involving the 93% reduction, it is important to

appreciate the nature of the other two citations because they are of a piece,

as they all relate to the same piece of equipment. Citation No. 9102709 speaks

to

[a] handrail chain with defects

affecting safety [which] was not corrected before equipment was used on the

company number 1199 end dump in the 001 pit. An accident occurred on 7/8/2016

in which a miner fell through the chain and caused it to break. The miner fell

13 feet and 10 inches to the ground. The handrail chain has severe corrosion

from rust and a minimum of 4 links are corroded together and are no longer

flexible links.

Citation

No. 9102709.

So

too, for Citation No. 9102711, the same piece of equipment was involved.       That

citation asserted,

[e]quipment defects affecting

safety were not recorded on 7/7/16 2nd shift. Defects were reported to a

mechanic but were not recorded in the pre op record book.  The pre op record

book shows no defects for the shift. The defects are in the form of a corroded

handrail chain that has severe rust and thin links that provides fall

protection from a miner on the catwalk of the end dump on the company number

1199.

Citation

No. 9102711.

The

specially assessed citation, No. 9102710, a section 104(a) citation, citing 30

C.F.R.

§

77.1101(c), and issued on 7/25/2016, asserts that

[p]lans for escape and evacuation

do not include proper maintenance of adequate means for exit of all areas where

persons are required to work or travel including buildings and equipment and in

areas where persons normally congregate during the work shift. An accident

occurred on 7/8/2016 where a miner was attempting to get out of the cab on

company number 1199 end dump when a rope tied from the cab to the mirror impeded

his exit and caused him to lean against a chain which broke and allowed him to

fall 13 feet and 10 inches to the ground. The rope was 57 inches to 59 inches

high across the entire 14 inch catwalk. A CB antenna cord is routed along the

catwalk that also creates a tripping hazard when accessing the ladder on the

front of the end dump.

Citation No. 9102710.

The

issuing inspector marked the citation as significant and substantial, of

moderate negligence, with an injury reasonably expected to result in lost

workdays or restricted duty. Id . As noted, the injury was marked as

“occurred.” Id .

An

extension was allowed so that the operator could make modifications to its plan

and resubmit it to MSHA and, on 8/02/2016, the operator having submitted a

modified plan, the citation was terminated.

The

Secretary’s Motion

The

Secretary’s Motion acknowledges, as it must, that “The Federal Mine Safety and

Health Review Commission has jurisdiction over these proceedings.” Motion at 2.

After

first proclaiming that in settlements he need not provide any facts to the

Commission, [1]

the Secretary then “presents the following information in support of the

penalties agreed to by the parties”

Citation No. 9102710 [2] – The $4,548

penalty is appropriate for this citation because there are factual and legal

issues in dispute. The citation was issued in response to a non-fatal accident

at Respondent’s Antioch mine. A miner fell from a catwalk on an end dump due to

an obstruction on the catwalk and a defect in a corroded handrail chain.

Respondent asserts the cited standard is not applicable to an end dump because

catwalks on an end dump cannot be considered areas where persons work or

travel, as those terms are used in the standard and in practice. Respondent

also asserts that the special assessment for the citation was not justified.

The Secretary asserts that the citation is valid as written, but agrees that the

facts do not support the special assessment and the citation should have

been regularly assessed pursuant to Part 100. In light of the parties’

interests in settling this matter amicably without further litigation and in recognition

of the nature of the citation and the uncertainties of litigation, the parties

wish to settle the matter as follows: (a) The negligence and gravity

determinations for this citation are unchanged and remain as issued. (b)

Removing the special assessment from the citation, and applying the penalty

factors found in Part 100, the penalty assessment for the citation, as modified

herein, is reduced from $68,300 to $4,548. Respondent agrees to pay the total,

revised penalty of $13,644, and agrees that Citation Nos. 9102709 and 9102711

are not modified by this agreement.

Motion

at 3-4 (emphasis added).

On

November 6, 2017, the Court, through its Attorney Advisor, advised the parties

that it was “reviewing the settlement motion for this matter [and] would like

to look at a copy of the inspector’s notes, and any photographs that may be

included with those notes.” Court’s November 6, 2017 E-mail to the Parties. The

Secretary responded the same day that he “respectfully declines to provide the

requested documents and rests on his settlement motion.” Secretary’s November

6, 2017 E-mail.

The

Court then advised the parties that it was “unable to properly review the

settlement motion until the inspector’s notes and the accompanying photographs

are sent to [the Court].   If the Secretary continues to decline submitting

these materials, [the Court] will simply issue a published denial of the

settlement motion.” November 13, 2017 Email From the Court To the Parties. The

Secretary responded that he “has reconsidered the Court’s request for the

inspector’s notes and photographs, but still respectfully declines to provide

those documents. We rest on the settlement motion filed in this matter.” November

15, 2017 Response From the Secretary.

MSHA’s

Special Assessment

One

starts with the premise that MSHA’s invoking the Special Assessment process

under 30 C.F.R. § 100.5 is both a thoughtful and fact-based analysis. If either

of these presumptions are not true, then the entire special assessment process

is suspect. In this case, MSHA presented its “Narrative Findings for a

Special Assessment.” Petition Ex. B (emphasis added) (“Narrative”). That

Narrative begins by noting that MSHA can elect to waive its regular assessment

formula, “if it deems that conditions concerning the violation warrant.”

Id .   Here, the Narrative advises “MSHA carefully evaluated

the conditions cited and the inspector’s relevant information and

evaluation. The proposed penalty reflects the results of an appraisal of all

the facts presented .” Id . (emphasis added).

Of

the three citations involved in this docket, only one, Citation No. 9102710,

was specially assessed. The mine was cited for a violation of 30 C.F.R.

§77.1101(c) “because the plans for escape and evaluation did not include proper

maintenance of adequate means for exit from all areas where persons are

required to work or travel including buildings and equipment and in areas where

persons normally congregate during the work shift.” [3] Id .

The

Narrative then addressed the gravity, stating that it “was considered serious

and the violation contributed to the cause of a fall of person accident. A

mobile equipment operator received serious injuries resulting from an

accidental fall from a haul truck.” Id.

Speaking

to the negligence, the Narrative related that the

violation resulted from the

operator’s moderate degree of negligence. A serious accident occurred which

resulted in non-fatal injuries to an equipment operator who fell from a Euclid

3500 haul truck. The equipment operator was attempting [to] exit the cab of the

haul truck when a rope, which was tied from the cab to the mirror, impeded his

exit. The rope was approximately 57 inches to 59 inches high and spanned the 14

inch catwalk. The miner was ducking underneath the rope in order to dismount

the truck when the rope caught the miner’s hard hat. While trying to retrieve

his hard hat, the operator leaned against a badly corroded handrail safety

chain which subsequently broke and allowed him to fall 13 feet and 10 inches to

the ground. [4]

A CB antenna cord was also routed along the catwalk that could have created a

tripping hazard for the operator as he attempted to exit the haul truck via the

access ladder on the front of the haul truck. The severity of the corrosion

observed on the handrail safety chain suggested that the corrosion had existed

for an extended period of time and management knew or should have known of the

hazardous condition and made no effort to correct the violation. . . . [t]he

violation was cited during an investigation of a serious fall of person

accident that occurred at the [Antioch Mine] on July 8, 2016.

Id .

Discussion

The Code of Regulations’

Provision addressing special assessments is, to put it mildly, concise, stating

“ MSHA may elect to waive the regular assessment under § 100.3 if it

determines that conditions warrant a special assessment,” and “[w]hen MSHA

determines that a special assessment is appropriate, the proposed penalty

will be based on the six criteria set forth in     § 100.3(a). All findings

shall be in narrative form.” 30 C.F.R. §100.5 (a), (b) (emphasis added).

However,

the process for approving a special assessment is noteworthy. Beginning with

the inspector who issues a violation, if appropriate, that individual completes

part of a special assessment form and the operator is notified that a special

assessment may ensue. Next, upon the inspector’s supervisor’s review of the

information in the form, it is sent to the District Office. At that point the

information is in suspension for ten days. During that interval the mine may

request a “Manager’s conference.” Requested or not, the Assistant District

Manager of Inspections then reviews the matter. Following that, the District

Manager makes a recommendation about whether to proceed with a special

assessment. It does not end there, because the Administrator then signs the

special assessment form together with that individual’s recommendation as to

the proper course of action. See, MSHA’s Program Policy Manual, Volume

III, 100.5; MSHA’s Special Assessment Review Form, 7000-32, Revised August

2006, and Chapter 4 of the General Coal Mine Inspection Procedures and Inspection

Tracking System Handbook.

Settlement

motions, whether the proposed penalties are initially derived via the regular

or special assessment process must be supported by facts. In this instance, the

Secretary’s Motion provides no facts and therefore it must be denied. Instead,

the Secretary employs a “he decides – the Commission follows” approach to Mine

Act settlement motions. Associated with the lack of supporting facts, as part

of its Congressionally delegated responsibility under 30 U.S.C. § 820(k), it is

within the Court’s prerogative to require the Secretary to submit the MSHA’s

inspector’s notes and photos, if the Court believes that such information is

necessary in determining if a compromise or mitigation in a settlement motion

is appropriate. 

It

is important to note that this was not an instance when there was no special

assessment and the Court essentially elected to create one. Here, following the

fairly elaborate process, a special assessment was issued. Thus, this matter is

quite distinct from the situation in Secretary v. Mechanicsville Concrete ,

which involved an instance when a judge made an “S&S” finding, sua

sponte , though the citation made no such allegation. 18 FMSHRC 877 (June

1996).

It

is also clear that, special assessment or not, all settlement motions are

subject to review by the Commission, and in the first instance this review is

by the administrative law judge to whom the docket has been assigned. As Judge

Margaret Miller noted in Teichert Aggregates , 39 FMSHRC 1098 (May 2017),

The principles governing the

authority of Commission Administrative Law Judges to assess civil penalties de

novo for violations of the Mine Act are well established. Section 110(i) of the

Mine Act delegates to the Commission and its judges ‘authority to assess all

civil penalties provided in [the] Act.’ 30 U.S.C. § 820(i). The duty of

proposing penalties is delegated to the Secretary. 30 U.S.C. §§ 815(a), 820(a).

The Secretary calculates penalties using the penalty regulations set forth in

30 C.F.R. § 100.3 or following the guidelines for special assessments in 30

C.F.R. § 100.5. When an operator notifies the Secretary that it intends to

challenge a penalty, the Secretary then petitions the Commission to assess the

penalty. 29 C.F.R. § 2700.28. Commission judges are not bound by the

Secretary’s penalty regulations or his special assessments. Am. Coal Co .,

38 FMSHRC 1987, 1990 (Aug. 2016). Rather, the Act requires that in assessing civil

monetary penalties, the judge must consider six statutory penalty criteria: the

operator’s history of violations, its size, whether the operator was negligent,

the effect on the operator’s ability to continue in business, the gravity of

the violation, and whether the violation was abated in good faith. 30 U.S.C. §

820(i). In keeping with this statutory requirement, the Commission has held

that judges must make findings of fact on the statutory penalty criteria. Sellersburg

Stone Co ., 5 FMSHRC 287, 292 (Mar. 1983), aff’d , 736 F.2d 1147, 1152

(7th Cir. 1984). Once these findings have been made, a judge’s penalty

assessment for a particular violation is an exercise of discretion ‘bounded by

proper consideration of the statutory criteria and the deterrent purposes underlying

the Act’s penalty scheme.’ Id. at 294; see also Cantera Green , 22 FMSHRC

616, 620 (May 2000).

39 FMSHRC 1098, 1103. See

also, Warrior Coal , 39 FMSHRC 509, 526 (March 2017)(ALJ), The American

Coal Co., 2017 WL 4230949, at *3 (Sept. 2017)(ALJ).

In

disputing the Commission’s role in reviewing settlements, the Secretary has

frequently invoked his claim that there be “transparency” with the process. However,

the Secretary apparently employs what can be generously described as an unusual

construction of that term, as he declines to show the Court the notes made and any

photographs taken concerning this citation. One would think that, especially in

instances where a 93% reduction from the initial proposal is being advanced,

the Secretary would be, not merely willing, but anxious and insistent to fully,

and yes, transparently, show the inspector’s notes and photographs associated

with the alleged violation. Further, the Secretary’s approach seems to turn the

attorney client relationship on its head. Typically, counsel advises, rather

than directs, a client, especially where, as here, the client, MSHA, is charged

in the first instance with protecting the safety and health of miners. 

It

seems antithetical to the mission of MSHA when, after thoughtfully employing

the special assessment process, a process which, as noted, ultimately requires

approval by the Administrator, that without explanation, the Secretary may

simply discard that process, provide no new facts, and essentially say

“nevermind,” while simultaneously not changing any of the underlying findings

in the citation. The effects of such a practice would be inherently

discouraging to inspectors who, in carrying out their enforcement obligations

in the name of protecting miners’ safety and health, follow the process in

place and, by that process, where the facts warrant it, urge that a special

assessment be employed. It must also be discouraging to those at the management

level who then apply that process, thinking in good faith that it is not a

useless exercise. Further, in light of the thoughtful process employed by MSHA

in determining that the conditions found warrant a special assessment, the

Secretary’s autocratic approach, telling the Court that – no, you can’t see

the inspector’s notes nor any photographs pertaining to the violation – is antithetical

to the overriding objective of the Mine Act.

Accordingly,

based on the foregoing reasons, the Secretary’s Motion to Approve Settlement is

DENIED . This case is now to be set for a prompt hearing. Alternatively,

the Secretary may submit a properly supported motion, along with the requested

photographs and inspector’s notes for the Court’s review.

SO

ORDERED .

/s/

William B. Moran

William B. Moran

Administrative

Law Judge

Distribution:

Travis

W. Gosselin

Department

of Labor, Office of the Solicitor

230

S. Dearborn Street, Room 844

Chicago,

Illinois 60604

Mark

E. Heath

Spilman

Thomas & Battle, PLLC

300

Kanawha Boulevard, East

P.O.

Box 273

Charleston,

WV 25321-0273

Robert

S. Wilson

Regional

Counsel

Arlington

Regional Solicitor's Office

U.S.

Department of Labor

201

12TH Street South

Arlington,

VA 22202-5450

[1] As with

virtually all of his settlement motions, the Secretary’s initial, fact-free,

position is repeatedly invoked that he has weighed the matter,

considered the cost of going to trial, formed the belief that he has

maximized his prosecutorial impact, and settled the matter, which in his

sole judgment , is on appropriate terms, and which ends with his unusual

conclusion that even if he won at trial , and even if the judgment

were greater than the settlement , such a result would not necessarily be a

better outcome. Motion at 2-3.

[2] The first page

of Citation No. 9102710 was missing from the file and the Court then instructed

the Secretary to provide that document. That missing page has now been inserted

into the official file. Also, the official file contained a citation, number 9102712,

which is not part of this docket, but perhaps could have been because it was

issued to the same mine on the same date as the other three citations.

[3] The language

employed in the Special Assessment tracks that of the cited provision, section

77.1101 at subsection (c), which provides: “Plans for escape and evacuation

shall include the designation and proper maintenance of adequate means for exit

from all areas where persons are required to work or travel including buildings

and equipment and in areas where persons normally congregate during the work

shift.” 30 C.F.R. § 77.1101(c).

[4] To visualize a

fall of 13 feet 10 inches, think of falling into the deep end of an empty

swimming pool. Typically such pools are not more than 10 feet deep. Then add

nearly another 4 feet and you will get a sense of the magnitude of the fall. In

this instance, the official file does not reveal the extent of the miner’s

injuries, but it does note that a month after the fall the miner had not

returned to work. Official file at 18; related Citation 9102712-01, August 24,

2016.