BC Quarries, LLC v. Secretary of Labor and Secretary of Labor v. BC Quarries, LLC
BC Quarries, LLC v. Secretary of Labor and Secretary of Labor v. BC Quarries, LLC (FMSHRC PENN 2020-0110-RM): Most withdrawal orders upheld, two vacated
Apply this to your situation
This order from 2022 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current MSHA standards and Commission precedent, with citations.
Plain-English summary
BC Quarries operates the Shirvan Quarry, a Pennsylvania surface mine that produces dimension stone. Judge Thomas P. McCarthy dismissed eight citation contests because BC Quarries did not timely contest the related penalty assessments, which had already become final Commission orders. Of the eleven withdrawal-related orders still at issue, he affirmed six outright, affirmed three with modifications, and vacated two because the Secretary did not prove that the originally cited conditions still existed. The affirmed orders involved uncorrected equipment defects, continued operation of withdrawn equipment, unlabeled fuel tanks, missing fire-warning signs, unsafe access, and missing defect records. He assessed $125 each for two fuel-tank orders and $137 for the sea-container order, for a total penalty of $387.
Decision snapshot
- Cited authority: 30 U.S.C. §§ 814(a), 815(a), 815(d), and 820(i); 30 C.F.R. §§ 47.41(a), 56.4101, 56.11001, 56.14100(b)-(d), 56.14132(a), 56.14207, and 56.4430(a)
- Outcome: Eight citation contests were dismissed, nine withdrawal-related orders were affirmed or affirmed as modified, two orders were vacated, and $387 was assessed.
- Key point: Contesting a citation does not contest the later penalty assessment, and an unchallenged assessment becomes a final order that the judge cannot revisit.
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: 202-434-9900 / FAX: 202-434-9949
BC QUARRIES, LLC,
Contestant
v.
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent
BC QUARRIES, LLC,
Contestant
v.
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
BC QUARRIES, LLC,
Respondent
CONTEST PROCEEDINGS
Docket No. PENN 2020-0110-RM
Citation No. 523939;
06/16/2020
Docket No. PENN 2020-0111-RM
Citation No. 9523940;
06/16/2020
Docket No. PENN 2020-0112-RM
Citation No. 9523941;
06/16/2020
Docket No. PENN 2020-0113-RM
Citation No. 9523942;
06/16/2020
Docket No. PENN 2020-0114-RM
Citation No. 9523943;
06/16/2020
Docket No. PENN 2020-0115-RM
Citation No. 9523945;
06/16/2020
Docket No. PENN 2020-0116-RM
Order No. 9523936; 06/16/2020
Docket No. PENN 2020-0118-RM
Order No. 9523937; 06/16/2020
Docket No. PENN 2020-0119-RM
Order No. 9523938; 06/16/2020
Docket No. PENN 2020-0120-RM
Order No. 9523958; 06/30/2020
Docket No. PENN 2020-0141-RM
Citation No. 9523971;
08/3/2020
Docket No. PENN 2020-0142-RM
Order No. 9523972; 08/03/2020
Docket No. PENN 2020-0143-RM
Citation No. 9523973;
08/3/2020
Docket No. PENN 2020-0144-RM
Order No. 9523974; 08/3/2020
Docket No. PENN 2020-0145-RM
Order No. 9523975; 08/3/2020
Docket No. PENN 2020-0146-RM
Order No. 9523970; 08/3/2020
Docket No. PENN 2020-0147-RM
Order No. 9523976; 08/3/2020
Docket No. PENN 2020-0148-RM
Order No. 9523977; 08/3/2020
Docket No. PENN 2020-0149-RM
Order No. 9523978; 08/3/2020
Mine: Shirvan Quarry
Mine ID: 36-09539
CIVIL PENALTY PROCEEDING
Docket No. PENN 2021-0007
A.C. No. 36-09539-523083
Mine: Shirvan Quarry
DECISION AND ORDER
Appearances: David L. Karp, operator,
for BC Quarries
Ryan Atkinson and Matthew P. Epstein, Office of the Solicitor, U.S.
Department of Labor, Philadelphia, PA for the Secretary
Before: Judge McCarthy
This proceeding
is before the undersigned upon Notices of Contest and a Petition for the
Assessment of Civil Penalty under section 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 815(d).
This matter
concerns a series of inspections of the Mine, Shirvan Quarry, from April to
October of 2020 and the resulting citations and orders. These inspections led
to a myriad of alleged violations, 8 citations and 11 orders at issue in this
proceeding. BC Quarries also challenges the penalty assessment that resulted
from three of the orders. Many of these alleged violations stem from a similar
sequence that involves a citation for an alleged violation followed by the failure
to abate that violation, a withdrawal order, and the failure to follow that
withdrawal order.
A hearing was
held via Zoom for Government on July 13-14, 2021. During the hearing, the
parties offered witness testimony [1] and documentary evidence
citation or order by citation or order. [2] The Secretary submitted a
post-hearing brief on September 13, 2021.
Based on a
careful review of the record, including the evidence submitted, the Secretary’s
post-hearing brief, and observation of the demeanor of witnesses, [3]
the undersigned makes the following findings of fact and conclusions of the law.
I. STIPULATIONS
The
parties submitted the following stipulations, which have been accepted into the
record:
a)
At all relevant times, Respondent has been
an “operator” as defined in Section 3(d) of the Mine Act, 30 U.S.C. § 802(d).
b)
BC Quarries is a “mine” as defined in § 3(h) of the Mine Act, 30 U.S.C.
§ 802(h).
c)
Respondent’s operations at the mine at which
the Citations in this case were issued are
subject to the jurisdiction of the Mine Act.
d)
This proceeding is subject to the
jurisdiction of the Federal Mine Safety and Health Review Commission and its
designated Administrative Law Judges pursuant to Sections 105 and 113 of the
Mine Act.
e)
The individuals whose names appear in Block 22 of the
Citation(s)/Order(s) in this case were acting in an official capacity and as
authorized representatives of the Secretary of Labor when they issued the Citations/Orders.
f)
The Citation(s)/Order(s) were properly issued and served by a duly
authorized representative of the Secretary of Labor upon an agent of Respondent
at the date, time, and place stated.
g)
Respondent is an ongoing business.
h)
From June 16 to August 3, 2020, miners used the sea container identified
in Order 9523975.
i)
From June 16 to August 3, 2020, miners used the 500-gallon tank
identified in Order 9523972.
j)
From June 16 to August 3, 2020, miners used the 100-gallon tank
identified in Order 9523974.
k)
On June 16, 2020, the John Deere excavator identified in Citation
9523939 did not have mirrors.
l)
As of June 16, 2020, the fire extinguisher identified in Citation
9523940 had not been inspected on a monthly basis.
Sec’y Prehearing Report at 3-4;
July 13 Tr. at 13-26.
II. PRELIMINARY MATTERS
As an initial
matter, numerous citations and orders involved in this matter—both those that
BC Quarries contested and those related to contested citations and orders—have
already become final decisions of the Commission.
The Mine Act
establishes a dual system for filing contests of citations and contests of
proposed penalties. 30 U.S.C. § 815(d); 29 C.F.R. Part 2700, Subparts
B, C; Kemper Equip. Inc. , 35 FMSHRC 376, 376 (Feb. 2013). However,
“[t]he filing of a notice of contest of a citation . . . does not
constitute a challenge to a proposed penalty assessment that may subsequently
be issued by the Secretary . . . based on that citation.” 29 C.F.R
§ 2700.21(a). Consequently, a party that wants to contest a proposed
penalty assessment must notify the Secretary of such contest “regardless of
whether the person has previously contested the underlying citation.” Id.
§ 2700.26. Where an operator fails to contest a penalty assessment within
30 days, the Secretary’s penalty assessment becomes a final order of the
Commission and not subject to review by any court or agency. 30 U.S.C.
§ 815(a). This is the case even where an operator has contested the
underlying citation. Apogee Coal Co., LLC , 38 FMSHRC 32 (Jan.
2016); Kemper , 35 FMSHRC at 377 . Furthermore, “a penalty
under the Mine Act is predicated upon the existence of a violation.” Old Ben
Coal Co. , 7 FMSHRC 205, 209 (Feb. 1985).
BC Quarries
contested the following citations but failed to contest the proposed penalty
assessments or file a motion to reopen for those citations:
Citation No. 9523939 in Docket No.
PENN 2020-0110,
Citation No. 9523940 in Docket No.
PENN 2020-0111,
Citation No. 9523941 in Docket No.
PENN 2020-0112,
Citation No. 9523942 in Docket No.
PENN 2020-0113,
Citation No. 9523943 in Docket No.
PENN 2020-0114,
Citation No. 9523945 in Docket No.
PENN 2020-0115,
Citation No. 9523971 in Docket No.
PENN 2020-0141, and
Citation No. 9523973 in Docket No.
PENN 2020-0143.
Sec’y Ex. 25
at 1-3; MSHA, Mine Data Retrieval System , https://www.msha.gov/mine-data-retrieval-system
(searchable by mine name) (“ MDRS ”). [4] Because BC Quarries did
not timely contest the proposed penalties or file a motion to reopen for these
dockets, the penalty assessments have “become[] a final order of the Commission
and not subject to review by any court or agency.” 30 U.S.C. § 815(a).
Consequently, these contest dockets are DISMISSED .
III. LEGAL PRINCIPLES, FACTUAL
FINDINGS, AND ANALYSIS
The Secretary presents
the remaining orders as falling into three categories: failure to abate a
citation, working in the face of an order, and failure to correct a citation.
In three of the Orders—Order
No. 9523936 in Docket No. PENN 2020-0166, Order No. 9523937 in Docket No.
PENN 2020-0118, and Order No. 9523938 in Docket No. PENN 2020-0119—the
Secretary alleges that BC Quarries violated section 104(b) when it failed to
abate a violation in a previously issued citation. In four of the Orders—Order
No. 9523970 in Docket No. PENN 2020-0146, Order No. 9523976 in Docket No. PENN
2020-0147, Order No. 9523977 in Docket No. PENN 2020-0148, and Order No. 9523939
in Docket No. PENN 2020-0110—the Secretary alleges that BC Quarries violated
section 104(b) when it failed to correct a previous violation. The words
“failure to correct” do not appear in section 104. However, it is a violation
of section 104(b) to fail to abate a violation. As such, the undersigned will
apply the same standard for a failure to abate a violation to the orders
alleging that BC Quarries failed to correct a previous citation. To establish that
a section 104(b) withdrawal order for a failure to abate is valid, the
Secretary must prove “by a preponderance of the evidence that the violation
described in the underlying section 104(a) citation existed at the time the
section 104(b) withdrawal order was issued.” Mid-Continent Resources, Inc. ,
11 FMSHRC 505, 509 (Apr. 1989).
The remaining four
Orders—Order No. 9523958 in Docket No. PENN 2020-0120, Order No. 9523972 in Docket
No. PENN 2020-0142, Order No. 9523974 in Docket No. PENN 2020-0144, and Order
No. 9523975 in Docket No. PENN 2020-0144—allege a violation for working in the
face of a withdrawal order. Although the language “working in the face” does
not appear in the Mine Act, it is a violation of section 104(a) to violate “any
. . . order . . . promulgated pursuant to this Act.” 30 U.S.C.
§ 814(a). As such, the Secretary must show, by a preponderance of the
evidence, that BC Quarries violated a valid, non-abated withdrawal order. Mid-Continent
Resources , 11 FMSHRC at 509.
Negligence is
not defined in the Mine Act. The Commission has found that “[e]ach mandatory
standard thus carries with it an accompanying duty of care to avoid violations
of the standard, and an operator’s failure to satisfy the appropriate duty can
lead to a finding of negligence if a violation of the standard occurred.” A.H.
Smith Stone Co. , 5 FMSHRC 13, 15 (Jan. 1983) (citations omitted). In
determining whether an operator meets its duty of care under the cited
standard, the Commission considers what actions would have been taken under the
same or similar circumstances by a reasonably prudent person familiar with the
mining industry, the relevant facts, and the protective purpose of the
regulation. See generally U.S. Steel Corp. , 6 FMSHRC 1908, 1910
(Aug. 1984); see also Jim Walter Res., Inc. , 36 FMSHRC
1972, 1975-77 (Aug. 2014) (requiring Secretary to show that operator failed to
take specific action required by standard violated); Spartan Mining , 30
FMSHRC at 708 (negligence inquiry circumscribed by scope of duties imposed by
regulation violated). In this regard, the gravamen of high negligence is “an
aggravated lack of care that is more than ordinary negligence.” Brody Mining ,
37 FMSHRC 1687, 1701 (Aug. 2015) ( citing Topper Coal Co. , 20 FMSHRC
344, 350 (Apr. 1998)).
Commission
judges are not required to apply the level-of-negligence definitions in Part 100
penalty regulations and may evaluate negligence from the starting point
of a traditional negligence analysis rather than from the Part 100 definitions.
Brody Mining , 37 FMSHRC at 1701; Mach Mining, LLC v. Sec’y of
Labor , 809 F.3d 1259, 1263-64 (D.C. Cir. 2016). Thus, in making a
negligence determination, a Commission judge is not limited to an evaluation of
allegedly mitigating circumstances but may consider the totality of the circumstances
holistically. Under such an analysis, an operator is negligent if it fails to
meet the requisite high standard of care under the Mine Act. Brody Mining ,
37 FMSHRC at 1701.
A.
General Background
BC Quarries
operates the Shirvan Quarry, a surface mine in Susquehanna, Pennsylvania. MDRS .
The mine produces dimension stone. Id.
This matter
involves inspections conducted by MSHA over a series of months. In April 2020,
Inspector Gary C. Merwine conducted the first set of relevant inspections. See ,
e.g. , Sec’y Ex. 8 at 7. On June 16 and 30 and July 9, 2020,
Inspector Timothy H. Lindsay conducted the second set of inspections. See ,
e.g. , Sec’y Ex. 5 at 1; Id. at 7; Sec’y Ex. 15 at 7. On
July 30, 2020, Inspector Lindsay again inspected the Mine. Due to events not
relevant to the alleged violations, Inspector Lindsay left the Mine without
issuing orders or citations for alleged violations found during the July 30
inspection. See , e.g. , Sec’y Ex. 5 at 7. On August 3, 2020,
Inspector Lindsay issued the orders and citations for alleged violations found
during the July 30 inspection. Finally, in October 2020, Inspector Merwine
returned to the Mine and terminated several pending citations and orders. See ,
e.g. , Sec’y Ex. 12 at 11.
The facts specific
to each remaining alleged violation will be discussed in separate sections
below.
B.
Order No. 9523936
In Order No.
9523936, part of Docket No. PENN 2020-0116, the Secretary alleges that BC
Quarries violated section 104(b) when it failed to abate the preceding Citation,
Citation No. 9522144. Sec’y Ex. 7 at 1. On April 2, 2020, Inspector
Merwine issued Citation No. 9522144 for a John Deere 330LC excavator missing all
its mirrors in violation of 30 C.F.R. § 56.14100(b). [5]
Id. at 7. BC Quarries did not contest the proposed penalty or file a
motion to reopen for Citation No. 9522144, which has become a final order of
the Commission and the violation cannot be challenged. MDRS ; 30 U.S.C.
§ 815(a); Apogee Coal , 38 FMSHRC at 32; Kemper ,
35 FMSHRC at 377. Inspector Merwine gave two extensions for termination of
Citation No. 9522144 and set a final extension for June 1, 2020. Sec’y Ex. 7 at
7-8.
On June 16,
2020, Inspector Lindsay observed that the John Deere 330LC excavator was still
missing all its mirrors. July 13 Tr. at 203. A foreman told Inspector Lindsay that
the excavator had been operated for two weeks in the cited condition after the citation
had been written. Sec’y Ex. 7 at 2.
In testimony, David
Karp admitted that he had not fixed the mirrors. July 13 Tr. at 212. Mr. Karp
also stated that the equipment had not been tagged out. Id. at 215-16. Mr.
Karp did allege that the equipment was in a designated area for equipment that
is out of service, but also admitted that there was no sign indicating that
there was such an area. Id . at 216. Based on the lack of any indication
that the area was posted or otherwise designated for equipment out of service,
the undersigned concludes that this area was not a designated area posted for
out-of-service equipment under 30 C.F.R. § 56.14100(c). [6]
In short, BC Quarries took no effective steps to correct the missing mirrors
“in a timely manner to prevent the creation of a hazard to persons.” 30 C.F.R.
§ 56.14100(b).
Consequently, the Secretary
has shown by a preponderance of the evidence that BC Quarries failed to abate the
preceding Citation No. 9522144 in violation of section 104(b). Accordingly, Order
No. 9523936 is AFFIRMED , and contest Docket No. PENN 2020-0116 is DISMISSED .
The Secretary did not assess a penalty for this
violation, and the undersigned declines to do so now.
C.
Order No. 9523937
In Order No. 9523937,
part of Docket No. PENN 2020-0118, the Secretary alleges that BC Quarries
violated section 104(b) when it failed to abate the preceding Citation,
Citation No. 9522143. Sec’y Ex. 8 at 1. On April 2, 2020, Inspector Merwine
issued the preceding Citation after he observed that the same John Deere 330LC excavator
discussed above, was missing a step to access the operator’s cab and the step
for accessing the fuel cap was severely bent and missing a trackpad. Inspector
Merwine issued the preceding Citation [7] for failing to provide a
safe means of access in violation of 30 C.F.R. § 56.11001. [8]
Sec’y Ex. 8 at 7. BC Quarries did not contest the proposed penalty for the
preceding citation or file a motion to reopen, and the preceding citation has
become a final order of the Commission and the violation cannot be challenged. MDRS ;
30 U.S.C. § 815(a); Apogee Coal , 38 FMSHRC at 32; Kemper ,
35 FMSHRC at 377. Inspector Merwine gave two extensions for terminating
the preceding citation, setting a final extension for June 1, 2020. Sec’y Ex. 8
at 8-9.
On June 16, 2020,
Inspector Lindsay observed that a step to the cab of the John Deere 330LC
excavator was still missing and that no repairs had been made. July 13 Tr. at 221.
Inspector Lindsay testified that the John Deere 330LC excavator was not locked
and tagged out. Id. As noted above, a foreman told Inspector Lindsay
that the excavator had been operated for two weeks in the cited condition after
the citation had been written. Sec’y Ex. 7 at 2.
Mr. Karp admitted
that he had not repaired the excavator and had not properly tagged it out, but
he again alleged that the excavator had been moved to an out-of-service area. July
13 Tr. at 223, 225. The undersigned again rejects this argument for the reasons
set forth above because the area was not a designated area posted for out-of-service
equipment under 30 C.F.R. § 56.14100(c). See Section B supra .
Consequently, the
Secretary has shown by a preponderance of the evidence that BC Quarries failed
to abate the preceding Citation No. 9522143 in violation of section 104(b). Order
No. 9523937 is AFFIRMED , and contest Docket No. PENN 2020-0118 is DISMISSED .
The Secretary did not assess a penalty for this
violation, and the undersigned declines to do so now.
D.
Order No. 9523938
In Order No.
9523938, part of Docket No. PENN 2020-0119, the Secretary alleges that BC
Quarries violated section 104(b) when it failed to abate the preceding Citation,
Citation No. 9522147. Sec’y Ex. 9 at 1. On April 2, 2020, Inspector
Merwine issued the preceding Citation for a John Deere 790ELC excavator that
did not have a functional travel alarm and horn in violation of 30 C.F.R.
§ 56.14132(a). [9] Id. at 6. BC
Quarries did not contest the proposed penalty or file a motion to reopen for
the preceding citation, and the preceding citation has become a final order of
the Commission and the violation cannot be challenged. MDRS ;
30 U.S.C. § 815(a); Apogee Coal , 38 FMSHRC at 32; Kemper ,
35 FMSHRC at 377. Inspector Merwine gave two extensions for terminating
the preceding citation, setting a final extension for June 1, 2020. Sec’y Ex. 9
at 7-8.
On June 16, 2020,
Inspector Lindsay issued Order No. 9523938. He observed that the cited
excavator was in use in the southeast corner of the pit. Lindsay’s documentation
indicates the foreman told him that repairs had been made, but no repair or
maintenance records were provided. Id. at 2. The foreman did not testify
at hearing. Inspector Lindsay testified that when the operator’s representative
Rodriguez tested the travel alarm by starting the excavator and moving it in
forward and in reverse, the travel alarm and horn did not function. July 13 Tr.
at 232-33, 235; see also Sec’y Ex. 9 at 1.
BC Quarries
questioned Inspector Lindsay as to the use of a spotter in lieu of a backup
alarm. July 13 Tr. at 250. Inspector Lindsay conceded on cross that BC Quarries
did not need a travel alarm or horn if it used a spotter. Id. at 236. However,
BC Quarries provided no testimony or evidence that it used a spotter on June
16, 2020. Further, Inspector Lindsay never received training records or any
other indication that BC Quarries had a trained spotter, and BC Quarries did
not produce any such records for this tribunal. Id. at 251, 254. Accordingly,
the undersigned finds insufficient evidence to conclude that BC Quarries used a
spotter in lieu of a backup alarm on June 16, 2020.
Mr. Karp testified
that to activate the travel alarm, “[y]ou physically have to start the machine
to operate it.” Id. at 237. However, Mr. Karp was not present for the
June 16 inspection, and he provided no credible testimony to contradict
Inspector Lindsay’s testimony that the excavator was physically moved during
the June 16 inspection when the travel alarm did not work. Id. at 238.
Mr. Karp admitted
that the horn did not work but testified that the fuse was blown. Id. at 237.
He further testified that that whenever the excavator is run, it is inspected, and
fuses are kept behind the seat, but that he
d[id]n’t know what it is, if some soda got down in there at some time
and shorted something out—or some Gatorade. The dealer seems to think that
every once in a while, it just blows the fuse . . . . [MSHA]
keep coming on days we’re not operating any of these machines and writing a
citation when none of them are being r[u]n.
Id.
at 237-38. Mr. Karp reiterated that “we have problems with the horn on the 790
excavator. The dealer thinks some soda or Gatorade got down behind the seat
into the fuse box.” Id. at 239. He further reiterated that pre-operational
inspections are done on the horn, and, if it doesn’t work, the fuse is
replaced. “If the MSHA guy comes and does an inspection, if we’re operating the
machine and it doesn’t work, that’s our problem.” Id. “And as we start
the machine on a daily inspect, if the fuse is blown, we put it in.” Id.
at 240.
The
undersigned discredits Mr. Karp’s testimony that the 790 excavator was not in
operation and his implicit suggestion that any blown fuse would have been
caught during the pre-operational inspection or might have occurred mid-shift
on June 16. The Secretary has shown that the 790 excavator was in operation and
the horn and back-up alarm did not work. BC Quarries proffered no documentation
or testimony that a fuse had been replaced on or after April 2 and before Inspector
Lindsay’s June 16, 2020 inspection. Given the extent of failure to abate
violations on this record, the undersigned discredits BC Quarries’ apparent rebuttal
defenses that it had timely abated the violation, but the violation recurred. Rather,
the undersigned finds that the Secretary has shown by a preponderance of the
evidence that BC Quarries failed to abate the preceding Citation No. 9522147 in
violation of section 104(b). Order No. 9523938 is AFFIRMED , and contest
Docket No. PENN 2020-0119 is DISMISSED . The
Secretary did not assess a penalty for this violation, and the undersigned
declines to do so now.
E.
Order No. 9523958
In Order No. 9523958, part of Docket No. PENN 2020-0120, the Secretary
alleges that BC Quarries violated section 104(b) when it was “working in the face”
of the preceding Order, Order No. 9523938, part of Docket No. PENN 2020-0119. Sec’y
Ex. 10 at 1. The preceding Order was a section 104(b) withdrawal Order that was
issued on June 16, 2020, requiring that the Operator cease the use of the John
Deere 790ELC excavator. Sec’y Ex. 9 at 1. The undersigned affirmed the
preceding Order and dismissed the Operator’s contest of the preceding Order in
Section D above.
Order No. 9523958 originally alleged a violation of section 104(a), but Inspector
Lindsay testified that there was a clerical error, and the violation was
modified to a violation of section 104(b). Sec’y Ex. 10 at 1-2; July 13 Tr. at
- However, as explained above, a violation of a valid withdrawal order as
alleged in Order No. 9523958 is a violation of section 104(a). 30 U.S.C.
§ 814(a) (stating that it is a violation to violate “any . . .
order . . . promulgated pursuant to this Act”). Consequently, the
undersigned MODIFIES Order No. 9523958 from a violation of section
104(b) to a violation of section 104(a). [10]
On June 30, 2020, Inspector Lindsay issued Order No. 9523958 after
observing that the hour meter on the John Deere 790ELC excavator indicated that
the excavator had been operated between June 18 and June 30, 2020. Sec’y Ex. 10
at 1; July 13 Tr. at 248-49. The Secretary also introduced photographs showing
the difference in the hour meter on those two dates. Sec’y Ex. 10 at 4-5. These
photos, along with Inspector Lindsay’s testimony, indicate that the excavator
had been operated for 23.4 hours during that 12-day period. The preceding
withdrawal Order was still in place. Id. at 1.
BC Quarries again raised the issue of a spotter (July 13 Tr. at 250), but
for the same reasons set forth above, the undersigned does not find sufficient evidence
to support the existence of a spotter. See Section D supra . BC
Quarries did not offer evidence or testimony to rebut the evidence of the hour
meter indicating that the excavator had been operated between June 18 and June
30, 2020.
The specific charge of Order No. 9523958 is that BC Quarries operated the
John Deere 790ELC excavator while it was under withdrawal Order No. 9523938. The
undersigned finds that the Secretary has shown by a preponderance of the
evidence that the excavator was operated between June 18 and June 30, 2020, in
violation of the withdrawal order and section 104(a). Order No. 9523958 is AFFIRMED
as modified, and contest Docket No. PENN 2020-0120 is DISMISSED . The Secretary did not assess a penalty for this
violation, and the undersigned declines to do so now.
F.
Order No. 9523972
In Order No.
9523972, part of contest Docket No. PENN 2020-0142 and penalty Docket No. PENN
2021-0007, the Secretary alleges that BC Quarries violated section 104(a) when
it continued to use a 100-gallon fuel tank and a 500-gallon fuel tank without
proper labeling and after the issuance of a preceding withdrawal Order, Order
No. 9523952. Sec’y Ex. 12 at 1. The Secretary issued the preceding withdrawal Order
No. 9523952 on June 30, 2020, for failing to abate Citation No. 9523943. Id.
at 10. The preceding Citation No. 9523943 found a violation of 30 C.F.R. § 47.41(a) [11]
because the tanks “were not labeled with [their] contents.” Sec’y Ex. 5 at 1.
BC Quarries did not contest or file a motion to reopen the preceding Order, and
the undersigned dismissed the challenge to Citation No. 9523943. See
Section II supra . As a result, the preceding Order and Citation are
“admitted and unreviewable.” 30 U.S.C. § 815(a); Apogee Coal ,
38 FMSHRC at 32; Kemper , 35 FMSHRC at 377. Inspector Merwine
terminated the preceding Order on October 6, 2020. Sec’y Ex. 12 at 11.
On July 30, 2020, Inspector Lindsay
saw that the same 100-gallon and 500-gallon fuel tanks did not have labels
indicating the contents of the tanks and the hazards posed by those contents. July
13 Tr. at 289. These tanks contained diesel fuel, a fire hazard. Id. at
- Inspector Lindsay also observed that the tanks were being used at
that time. Id. at 291-92.
Mr. Karp
acknowledged that the tanks had been moved and used between June 30 and August
3, 2020. Id. at 293-95. [12] Brandon Karp testified
that he had written “no smoking” on the tanks on June 16 and “flammable” “combustible”
by June 19, 2020. Id. at 306, 308. Although Brandon Karp initially
testified that he “wrote diesel on the tanks or diesel storage,” he later
admitted that the tanks did not have the word “diesel” on them or have other
labelling that would indicate the contents of the tanks. Id. at 298-99,
- Given the subsequent testimony and the lack of supporting photographic or
other evidence, the undersigned discredits Brandon Karp’s initial testimony
that he wrote “diesel” or “diesel storage” on the tanks and credits his
subsequent admission that he did not do so.
BC Quarries
submitted a photo that showed a manufacturer’s label on the 100-gallon tank. Op.
Ex. 2. However, that label—a diamond with a red background, a picture of a
flame, the word “combustible,” and the number three—only indicates that tank
contained a flammable liquid and does not indicate what type of liquid was in
the tank. See 49 CFR § 172.419 (defining the hazard label for flammable
liquids). As such, the manufacturer’s label does not satisfy the requirements
of § 47.41(a).
BC Quarries
introduced no credible evidence that the tanks were labelled as containing
diesel fuel at any time between June 30 and July 31, 2020. Based on that failure
and the testimony provided by Inspector Lindsay, the undersigned finds that the
tanks were not labelled to identify their contents.
Consequently, the undersigned finds that the Secretary has shown by a
preponderance of the evidence that BC Quarries continued to use the 100- and
500-gallon fuel tanks without labels identifying their contents and did so
despite the preceding withdrawal Order No. 9523952, thus violating section 104(a).
Order No. 9523972 is AFFIRMED , and contest Docket No. PENN 2020-0142 is
DISMISSED .
After the issuance of the withdrawal Order, BC Quarries did attempt to
label the tanks to comply with MSHA regulations. Despite its failure to conform
to these regulations, the actions of BC Quarries demonstrate that it was acting
with only moderate negligence in this violation. Because the preceding
withdrawal Order and Citation were still in effect on July 30, 2020, the
violation described in Order No. 9523972 would not, itself, result in any
additional likelihood of injury or illness. Therefore, the gravity of Order No. 9523972
is none. Through its repeated attempts to correct the violation, BC Quarries
demonstrated some good faith.
The amount of a proper penalty will be discussed in Section IV.
G.
Order No. 9523974
In
Order No. 9523974, part of contest Docket No. PENN 2020-0144 and penalty Docket
No. PENN 2021-0007, the Secretary alleges that after the issuance of a
preceding section 104(b) withdrawal Order No. 9523954, BC Quarries
violated section 104(a) when it continued to use the above-mentioned 100-gallon
and 500-gallon fuel tanks without signs prohibiting smoking and open flames. Sec’y
Ex. 14 at 1. The Secretary issued the preceding withdrawal Order No. 9523954
on June 30, 2020 for failing to abate Citation No. 9523946. Id. at 12. The
preceding Citation No. 9523946 was for a violation of 30
C.F.R. § 56.4101. [13] BC Quarries did not
contest the preceding Order or Citation. As a result, the preceding Order and
Citation are “admitted and unreviewable.” 30 U.S.C. § 815(a); Apogee
Coal , 38 FMSHRC at 32; Kemper , 35 FMSHRC at 377. Inspector
Merwine terminated the preceding Citation on October 6, 2020. July 13 Tr. at 332.
On
July 30, 2020, Inspector Lindsay observed a 100-gallon fuel tank and a
500-gallon fuel tank at the Mine. Id. at 329. These tanks contained
diesel fuel, a fire hazard. Id. The 100-gallon fuel tank had the
manufacturer’s label, but neither fuel tank had any signs prohibiting smoking
or open flames. Id. at 330-31. BC Quarries stipulated that miners used
the 100-gallon and the 500-gallon fuel tanks from June 16 to August 3, 2020. Sec’y
Prehearing Report at 3-4; July 13 Tr. at 13-26; see also id . at 347
(Brandon Karp testifying that the tanks were never taken out of service).
Brandon
Karp also testified that the words “no smoking” were written on the tanks with
a Sharpie pen, but he admitted that there was no sign prohibiting smoking and open
flames. July 13 Tr. at 347. BC Quarries submitted a photo taken on August 10,
2022 showing the words “no smoking” and “combustible” written in Sharpie on the
500-gallon tank. Op. Ex. 3. However, based on the photo, the undersigned finds
that the words in thin black Sharpie on the rust-colored 500-gallon tank are
not “readily visible” as required by the regulation. 30 C.F.R. § 56.4101. No similar photo with words written in thin black
Sharpie was proffered by BC Quarries for the 100-gallon tank. See Sec’y
Ex. 14 at 5 and 6. The undersigned concludes that on July 30, 2020, the
100-gallon fuel tank and the 500-gallon fuel tank did not have readily visible signs
prohibiting smoking and open flames.
The undersigned concludes that the Secretary has shown by a preponderance
of the evidence that BC Quarries violated section 104(a) by continuing to use
the 100- and 500-gallon fuel tanks without signs prohibiting smoking and open
flames while the preceding withdrawal Order No. 9523954 was in effect. Accordingly,
Order No. 9523974 is AFFIRMED , and contest Docket No. PENN 2020-0144 is
DISMISSED .
After the issuance of the withdrawal Order, BC Quarries did attempt to
label the tanks to comply with MSHA regulations. Despite its failure to conform
to these regulations, the actions of BC Quarries demonstrate that it was acting
with only moderate negligence in this violation. Because the preceding
withdrawal Order and Citation were still in effect on July 30, 2020, the
violation described in Order No. 9523974 would not, itself, result in any
additional likelihood of injury or illness. Therefore, the gravity of Order No.
9523974 is none. Through its repeated attempts to correct the violation, BC
Quarries demonstrated some good faith.
The amount of a proper penalty will be discussed in Section IV.
H.
Order No. 9523975
In Order No. 9523975, part of contest Docket
No. PENN 2020-0145 and penalty Docket No. PENN 2021-0007, the Secretary alleges
that BC Quarries violated section 104(a) when it used a sea container housing
oxygen acetylene tanks and gasoline cans without signs prohibiting smoking and
open flames after the issuance of a preceding section 104(b) withdrawal Order, Order
No. 9523955. Sec’y Ex. 15 at 1. The Secretary issued the preceding
withdrawal Order No. 9523955 on June 30, 2020 for failing to abate Citation No.
9523948. Id. at 5. The preceding Citation No. 9523948 was for a
violation of 30 C.F.R. § 56.4101. [14]
BC Quarries did not contest the preceding Order or Citation . As a result, the preceding Order and Citation
are “admitted and unreviewable.” 30 U.S.C. § 815(a); Apogee Coal ,
38 FMSHRC at 32; Kemper , 35 FMSHRC at 377. The preceding
Citation was terminated on October 6, 2020. July 13 Tr. at 352.
On
July 30, 2020, Inspector Lindsay observed a sea container that had oxygen
acetylene tanks and gasoline tanks inside. Id. at 352. Inspector Lindsay
did not observe any signs on the outside of the container indicating that
smoking and open flames were prohibited. Id. Inspector Lindsay also
observed the inside of the sea container and did not see the required signage. Id.
at 355. Inspector Lindsay also testified that the doors of the container were
open, and that he did not observe any signs on the interior sides of the doors
either. Id . at 354-55. Inspector Lindsay also testified that the
container presented a fire hazard because of its contents and the risk that a
dropped match or lit cigarette would ignite the dry grass surrounding the
container. Id. at 358-57, 362-63; Sec’y Ex. 15, at 8-9.
Mr.
Karp testified that, on July 30, 2020, there were labels on the inside of the
doors of the sea container. July 13 Tr. at 360. This testimony conflicts with Inspector
Lindsay’s testimony that there were no labels on the inside of the doors of the
container. Id. at 354-55. On this record, the undersigned credits Inspector
Lindsay who had clear recall on cross examination of his observations and
discussions concerning the open container and its contents on August 3, 2020. Id.
at 354-60. However, whether there were signs on the insides of the doors is
ultimately irrelevant. The standard requires that the required signage be
“readily visible.” 30 C.F.R. § 56.4101. Even if there were signs on the
interior sides of the doors, once those doors are closed, the signs are no
longer visible to miners on the outside of the container filled with oxygen
acetylene and gasoline tanks. If there were signs on the interior of the doors,
they were not “readily visible” and would not, alone, satisfy the standard. July
13 Tr. at 359.
Consequently, the undersigned finds that the Secretary has shown by a
preponderance of the evidence that BC Quarries continued to store materials
that posed a fire or explosion hazard in the sea container without readily
visible signs prohibiting smoking and open flames and did so despite the
preceding withdrawal Order No. 9523955, thereby violating section 104(a). Order
No. 9523975 is AFFIRMED , and contest Docket No. PENN 2020-0145 is
DISMISSED .
BC Quarries had been repeatedly warned to label the sea container, which
had oxygen acetylene and gasoline tanks inside, with signs prohibiting smoking
and open flames. The failure to do so and the continued use of the sea
container despite the withdrawal Order constitutes high negligence. Because the
preceding withdrawal Order and Citation were still in effect on July 30, the
violation described in Order No. 9523975 would not, itself, result in any
additional likelihood of injury or illness. Therefore, the gravity of Order No.
9523975 is none. Despite the preceding Order and Citation, BC Quarries did not
correct the violation. This demonstrates a lack of good faith on the part of BC
Quarries.
The amount of a proper penalty will be discussed in Section IV.
I.
Order No. 9523970
In
Order No. 9523970, part of contest Docket No. PENN 2020-0146, the Secretary
alleges that BC Quarries violated section 104(b) when it failed to abate the
preceding Citation, Citation No. 9523967. Sec’y Ex. 16 at 1. The Secretary
issued the preceding Citation No. 9523967 on July 9, 2020 for a violation of 30
C.F.R. § 56.14207. [15] Id. at 7. BC
Quarries did not contest the preceding Citation .
As a result, the preceding Order and Citation are “admitted and
unreviewable.” 30 U.S.C. § 815(a); Apogee Coal , 38 FMSHRC
at 32; Kemper , 35 FMSHRC at 377. The preceding Citation was
terminated on October 6, 2020. Sec’y Ex. 16 at 2.
During the July 9, 2020
inspection, Inspector Lindsay observed a Volvo A25C haul truck that was parked
with no chocks. July 14 Tr. at 6. At that time, Inspector Lindsay used the
level on his phone and determined that the truck was on
a two-degree incline . Id. at 7. Inspector Lindsay also took a
picture of the truck and the level indicating the two-degree incline. Sec’y Ex.
16 at 11. Based on this inspection, Inspector Lindsay issued the preceding
Citation No. 9523967. Id. at 7.
During the July 30,
2020 inspection, Inspector Lindsay again observed the haul truck parked with no
chocks. July 14 Tr. at 7. Although it was the same haul truck, it was in a
different location during the July 30 inspection. Id . at 12. The
Secretary submitted two photos of the haul truck taken during the July 30
inspection. Sec’y Ex. 16 at 5-6. Inspector Lindsay also
testified that the haul truck was on an incline. July 14 Tr. at 7. However, Inspector
Lindsay did not provide any measurements of the angle of the incline during the
July 30 inspection. Additionally, Inspector Lindsay admitted that one of the
photos (Sec’y Ex. 16 at 5) did not show an incline and that he could not tell
how far the truck might roll in the second photo (Sec’y Ex. 16 at 6). Id.
at 9, 11, 16.
Mr. Karp testified
that the haul truck was on level ground during the July 30 inspection. Id.
at 18.
As noted above, to
prove a failure to abate a preceding violation, the Secretary must show that the
violation that existed in the preceding citation existed at the time the
Secretary issued the order. Mid-Continent Resources, Inc. ,
11 FMSHRC at 509. Here, the Secretary has failed to provide sufficient
evidence to show that the haul truck was on an incline on the date he issued
the Order. Of the two photos used as support for this Order, the first
shows—and the Inspector admitted it shows—the truck on level ground. Sec’y Ex.
16 at 5; July 14 Tr. at 9, 16. The second photo is more ambiguous, but the
undersigned finds that the second photo does not show, by a preponderance of
the evidence, that the haul truck was on an incline during the July 30
inspection. Sec’y Ex. 16 at 6. Even assuming the second photo showed an
incline, the Secretary did not provide any evidence as to the degree of any
incline or demonstrate that it was more than de minimis.
Although the Secretary
need only show that the violation described in the preceding Citation existed
at the time of the issuance of the Order, the different locations of the haul
truck present a changed circumstance. Because the haul truck had been moved
sometime between the July 9 and 30 inspections, the Secretary cannot rely on Inspector
Lindsay’s testimony that he determined that the truck was on a two-degree
incline during the July 9, 2020 inspection. The Secretary must show that haul
truck was on an incline in the new location on July 30, 2020. The Secretary has
failed to do so.
As noted, Mr.
Karp testified contrary to Inspector Lindsay that the haul truck was on level
ground during the July 30 inspection. July 14 Tr. at 18. Although Inspector
Lindsay testified that the haul truck was on an incline, he did not provide any
measurements of the angle of the incline during the July 30 inspection and he admitted
that one of the photos did not show an incline and he could not tell how far
the truck might roll in the second photo. In these circumstances, the undersigned
discounts Lindsay’s testimony and credits Karp’s testimony that the haul truck
was on level ground during the July 30 inspection consistent with Sec’y Ex. 16
at 5.
Consequently, the Secretary
has failed to show by a preponderance of the evidence that BC Quarries failed
to abate Citation No. 9523967, and the undersigned VACATES Order
No. 9523970.
J.
Order No. 9523976
In Order No. 9523976,
part of contest Docket No. PENN 2020-0147, the Secretary alleges that BC
Quarries violated section 104(b) when it failed to abate the preceding Citation,
Citation No. 9523968 . Sec’y Ex. 17 at 1. The
Secretary issued the preceding Citation No. 9523968
on July 9, 2020 for a violation of 30 C.F.R. § 56.11001. [16]
Id. at 8. BC Quarries did not contest the preceding Citation . MDRS . As
a result, the preceding Order and Citation are “admitted and unreviewable.” 30 U.S.C.
§ 815(a); Apogee Coal , 38 FMSHRC at 32; Kemper ,
35 FMSHRC at 377. The preceding Citation was terminated on October 6,
2020. Sec’y Ex. 17 at 2.
On July 9, 2020,
Inspector Lindsay observed a Volvo A25C haul truck with damaged steps. July 14 Tr.
at 25, Sec’y Ex. 17 at 8. Specifically, Inspector Lindsay observed that the
bottom step of the engine access step was missing and that the next step was
damaged, making it uneven. Id. at 27. Based on the damaged steps, the
Secretary issued the preceding Citation No. 9523968 for a failure to provide
safe access for the haul truck. Sec’y Ex. 17 at
8.
On
July 30, 2020, Inspector Lindsay inspected the haul truck again and found that
the steps were still damaged. July 14 Tr. at 28. Inspector Lindsay also took
photos of the damaged steps. Id. ; Sec’y Ex. 17 at 5.
Although
Mr. Karp argued that he had personal reasons for not repairing the steps, he
admitted that an inspector had told him how to fix the damaged steps, but he
had not done so. July 14 Tr. at 35-37, 38.
The
Secretary has demonstrated by a preponderance of the evidence that BC Quarries
did not abate the preceding Citation No. 9523968 in violation of section 104(b).
Order No. 9523976 is AFFIRMED , and contest Docket No. PENN
2020-0147 is DISMISSED . The Secretary did
not assess a penalty for this violation, and the undersigned declines to do so
now.
K.
Order No. 9523977
In Order No. 9523977 , part of contest Docket No. PENN
2020-0148, the Secretary alleges that BC Quarries violated section 104(b) when
it failed to abate the preceding citation, Citation No. 9523957 . Sec’y Ex. 18 at 1. The Secretary issued the preceding
Citation No. 9523957 on June 30,
2020 for a violation of 30 C.F.R. § 56.14100(d). [17]
Id. at 5. BC Quarries did not contest the preceding Citation . MDRS . As a result, the preceding
Citation is “admitted and unreviewable.” 30 U.S.C. § 815(a); Apogee
Coal , 38 FMSHRC at 32; Kemper , 35 FMSHRC at 377. The
preceding Citation was terminated on October 8, 2020. July 14 Tr. at 41; Sec’y
Ex. 18 at 2.
On June 30, 2020,
Inspector Lindsay requested pre-shift examination and workplace examination
paperwork. July 14 Tr. at 39-40. At that time, BC Quarries did not produce any
paperwork, despite the multiple pieces of defective equipment at the Mine. Id.
at 39. Inspector Lindsay then issued the preceding Citation No. 9523957 for
violating § 56.14100(d). Sec’y Ex. 18 at 5. The original Citation
referenced several pieces of defective equipment that should have been
documented under § 56.14100(d) . Id.
On
July 30, 2020, Inspector Lindsay returned to the mine and again requested
pre-shift and workplace exam paperwork. July 14 Tr. at 40. BC Quarries did not
provide the requested paperwork. Based on
BC Quarries’ continued failure to produce the paperwork, Inspector Lindsay
issued Order No. 9523977.
At
the hearing, Mr. Karp argued that, because no equipment needed repairs during
pre-shift examinations, there was no need for such equipment to be listed in
pre-shift and workplace‑exam paperwork. July 14 Tr. at 49. Inspector Lindsay
admitted that, under § 56.14100(d), a mine operator does not need to
provide paperwork where there are no defects. Id. at 50. The evidence
throughout this hearing demonstrates, however, that there were known defects
that BC Quarries never documented, and that BC Quarries failed to abate. For
example, Orders No. 9523937 and 9523938 involve defects that had been
originally cited as violations on April 2, 2020, were part of Citation No.
9523957—the preceding Citation—and had not been abated until October 2020. BC
Quarries did not produce these records until the preceding Citation was abated
on October 8, 2020. Id. at 41. As such, the evidence demonstrates that there
were at least several months when BC Quarries was aware of the defects but did
not record them as required by § 56.14100. This evidence further indicates
that BC Quarries was in violation of this regulation when Order 9523977
was issued.
Consequently, the Secretary
has demonstrated by a preponderance of the evidence that BC Quarries did not
abate the preceding Citation No. 9523957, thereby violating section 104(b). Order
No. 9523977 is AFFIRMED , and contest Docket No. PENN 2020-0148 is DISMISSED .
The Secretary did not assess a penalty for this violation, and the undersigned
declines to do so now.
L.
Order No. 9523978
In
Order No. 9523978 , part of contest Docket
No. PENN 2020-0149, the Secretary alleges that BC Quarries violated section
104(b) when it failed to abate the preceding citation, Citation No. 9523961 . Sec’y Ex. 19 at 1. The Secretary
issued the preceding Citation No. 9523961 on
June 30, 2020 for a violation of 30 C.F.R. § 56.4430(a). [18]
Id. at 19. BC Quarries did not contest the preceding Citation . MDRS . As a result, the preceding
Citation is “admitted and unreviewable.” 30 U.S.C. § 815(a); Apogee
Coal , 38 FMSHRC at 32; Kemper , 35 FMSHRC at 377. The
preceding Citation was terminated on October 6, 2020. Sec’y Ex. 19 at 2.
During
the July 9, 2020 inspection, Inspector Lindsay saw five-gallon fuel cans containing
gasoline that were not “maintained in a manner to prevent leakage.” July 14 Tr.
at 51. Specifically, the cans “had a plastic bag with trash inside draped over
the fill port and the cap [was] placed on it to prevent leakage.” Id. at
- Inspector Lindsay issued the preceding Citation to that effect. Sec’y Ex.
19 at 9.
During the July 30,
2020 inspection, Inspector Lindsay saw five-gallon fuel cans that “didn’t have
any ventilation” and had caps “screwed on tight.” July 14 Tr. at 52. The Secretary
proffered a photo of the cans taken during this inspection. Sec’y Ex. 19 at 4. The
photo does not show any bag filled with trash. Id . Inspector Lindsay also
admitted that there was no plastic bag during this inspection and that BC
Quarries had “made an adjustment.” July 14 Tr. at 56. Mr. Karp also
testified that the cans had been changed between the two inspections. Id.
at 57.
Order 9523978 is
for a violation of 104(b) for a failure to abate the preceding Citation No. 9523961.
The Secretary needs to prove that the violation described in the preceding
Citation existed at the time the Order was issued. Sec’y Br. at 32 (citing Mid-Continent
Resources, Inc. , 11 FMSHRC at 509). However, the Secretary has failed to
prove that here. The original citation described the violation as a fuel can
“not maintained in a manner that prevents leaks” and “had a plastic bag with
trash inside draped over the fill port then the cap placed on it.” Sec’y Ex. 19
at 4. In contrast, Inspector Lindsay, on July 30, 2020, issued the Order for
a fuel can that “didn’t have any ventilation” and “the cap was screwed on
tight.” July 14 Tr. at 52. Inspector Lindsay also admitted—and the photo
clearly demonstrates—that there was no plastic bag with trash in it during the
July 30 inspection. Id. at 56; see also , Sec’y Ex. 19 at 4.
The violation
described in the preceding Citation did not exist on July 30, 2020. Not only was
there no “plastic bag with trash inside draped over the fill port” with a cap
on it, but the description of the violation was also different during the July
30 inspection. Inspector Lindsay testified that the July 30 inspection showed
fuel cans that lacked ventilation, but the preceding Citation was for failure
to prevent leakages. Compare id. at 52 (describing the fuel can
that “didn’t have any ventilation”) with Sec’y Ex. 19 at 4 (“The five
gallon fuel can . . . was not maintained in a manner that prevents
leakage”). While § 56.4430(a) concerns both leakage and ventilation, the
preceding Citation described a violation for a condition—that is, leakage—that
was not present at the time of the subsequent Order.
The Secretary has
failed to demonstrate that the violation described in Citation No. 9523961
existed at the time he issued Order No. 9523978, and the undersigned VACATES
Order No. 9523978.
IV.
Penalty Assessment
It
is well established that Commission Administrative Law Judges assess
civil penalties de novo for violations of the Act. Section 110(i) of the Act
delegates to the Commission the “authority to assess all civil penalties
provided in [the] Act.” 30 U.S.C. § 820(i). The Act delegates the
duty of proposing penalties to the Secretary. 30 U.S.C. §§ 815(a),
820(a). When an operator contests the proposed penalty, the Secretary petitions
the Commission to assess the proposed penalty. 29 C.F.R. § 2700.28. The Act
requires, that “in assessing civil monetary penalties, the Commission [ALJ]
shall consider” six statutory penalty criteria:
[1] the operator’s history of
previous violations, [2] the appropriateness of such penalty to the size of the
business of the operator charged, [3] whether the operator was negligent, [4]
the effect on the operator's ability to continue in business, [5] the gravity
of the violation, and [6] the demonstrated good faith of the person charged in
attempting to achieve rapid compliance after notification of a violation.
30
U.S.C. § 820(i).
In keeping
with this statutory requirement, the Commission has held that “findings of fact
on the statutory penalty criteria must be made” by its judges. Sellersburg
Stone Co., 5 FMSHRC 287, 292 (Mar. 1983), aff’d, 736 F.2d
1147 (7th Cir. 1984). Once factual findings on the statutory penalty criteria
have been made, a judge’s penalty assessment for a particular violation is an
exercise of discretion, which is bounded by proper consideration of the
statutory criteria and the deterrent purposes of the Act. Id. at 294; Cantera
Green, 22 FMSHRC 616, 620 (May 2000). In exercising this discretion to
determine the amount of a penalty, the Commission has recognized that a judge
is not bound by the penalty proposed by the Secretary. Spartan Mining Co. ,
30 FMSHRC 699, 723 (Aug. 2008).
When
determining a proper assessment for the violations, the undersigned considered
the following facts: 1) BC Quarries’ history of violations of the relevant
standards in the 15 months prior to the accident (Sec’y Ex. 25); 2) BC
Quarries’ size as an operator, who logged 3,000 hours worked at the mine in 2020
( MDRS ); and 3) the fact that the penalties will not have an effect
on BC Quarries’ ability to continue in business (July 13 Tr. at 26).
In addition,
the undersigned considered the high level of negligence and zero gravity of Order
No., and 9523975, as well as the failure in good faith to timely correct the
violations. For Orders No. 9523972 and 9523974, the undersigned considered the
moderate levels of negligence, the zero gravity, and BC Quarries’ good faith.
Based upon the undersigned’s
consideration of the section 110(i) penalty criteria and the deterrent purposes
of the Act, the undersigned assesses penalties of $125.00 each for Orders No.
9523972 and 9523974 and a penalty of $137.00 for Order No. 9523975. This amount
is the result of an independent determination of the penalty amount based on
the statutory criteria that responds to the seriousness of the violations and will
deter future violations. American Coal Co. v. FMSHRC , 933 F.3d 723, 728
(D.C. Cir. 2019).
V. CONCLUSION
For the
foregoing reasons, it is ORDERED that Docket No. PENN 2020-0110
contesting Citation No. 9523939, Docket No. PENN 2020-0111 contesting Citation
No. 9523940, Docket No. PENN 2020-0112 contesting Citation No. 9523941, Docket
No. PENN 2020-0113 contesting Citation No. 9523942, Docket No. PENN 2020-0114
contesting Citation No. 9523943, Docket No. PENN 2020-0115 contesting
Citation No. 9523945, Docket No. PENN 2020-0141 contesting Citation No.
9523971, and Docket No. PENN 2020-0143 contesting Citation No. 9523973 be DISMISSED .
It is ORDERED that Orders No. 9523936, 9523937, 9523938, 9523975,
9523976, and 9523977 be AFFIRMED , and contest Dockets No. PENN
2020-0116, 0118, 0119, 0145, 0147, and 0148 be DISMISSED .
It is ORDERED
that Order No. 9523958 be MODIFIED from a violation of section
104(b) to a violation of section 104(a); that Orders No. 9523972 and 9523974 be
MODIFIED from high negligence to moderate negligence; that Orders No. 9523958,
9523972, and 9523974 be AFFIRMED as modified; and that contest Dockets
No. PENN 2020-0120, 0142, and 0144 be DISMISSED .
It is ORDERED
that Orders No. 9523970 and 9523978 be VACATED .
It is further ORDERED
that the Operator pay a total penalty of $387.00 within thirty days of this order. [19]
/s/
Thomas P. McCarthy
Thomas
P. McCarthy
Administrative
Law Judge
Distribution:
David Karp
BC Quarries, LLC
908 Fox Road
Factoryville, PA 18419
Ryan Atkinson
Matthew R. Epstein
Office of the Solicitor
U.S. Department of Labor
The Curtis Center
170 S. Independence Mall West
Suite 630 East
Philadelphia, PA 19106-3306
BC Quarries, LLC
Miner’s Representative
908 Fox Road
Dimock, PA 18419
/ztb
[1] MSHA inspector Timothy H.
Lindsay testified for the Secretary. Mine Operator David Karp and his son,
Brandon Karp, testified for BC Quarries.
[2] In this Decision, “July
13 Tr.” refers to the hearing transcript for July 13, 2021, “July 14 Tr.”
refers to the July 14, 2021 transcript, “Sec’y Ex.” refers to the Secretary’s exhibits,
and “Op. Ex.” refers to BC Quarries’ exhibits. Sec’y Exs. 1-30 and Op. Exs. 1-3
were received into evidence. July 14 Tr. at 75, 77.
[3] In evaluating testimony,
the undersigned has taken into consideration the nature of the questioning and
testimony given in response, the demeanor of the witnesses, their evasiveness
or forthrightness, their interests in this matter, the inherent probability of
their testimony in light of other events, corroboration or lack of
corroboration for their testimony, their experience and credentials, and their
consistency or lack of consistency vis-à-vis their own testimony and the
testimony of other witnesses.
[4] The undersigned takes
judicial notice of MDRS. Fed. R. Evid. 201(b) (“The court may judicially notice
a fact that is not subject to reasonably dispute because it . . . can
be accurately and readily determined from sources whose accuracy cannot reasonably
be questioned.”).
[5] This regulation states
that “[d]efects on any equipment, machinery, and tools that affect safety shall
be corrected in a timely manner to prevent the creation of a hazard to persons.”
[6] This regulation states
that “[w]hen defects make continued operation hazardous to persons, the
defective items including self-propelled mobile equipment shall be taken out of
service and placed in a designated area posted for that purpose, or a tag or
other effective method of marking the defective items shall be used to prohibit
further use until the defects are corrected.”
[7] The original citation
stated that it was for a violation of 30 C.F.R. § 56.10001. Inspector
Lindsay explained that Inspector Merwine had entered the incorrect regulation
and that § 56.11001 is the correct regulation for the violation described
in the preceding citation. July 13 Tr. at 218.
[8] This regulation states
that “[s]afe means of access shall be provided and maintained to all working
places.”
[9] This regulation states
that “[m]anually-operated horns or other audible warning devices provided on
self-propelled mobile equipment as a safety feature shall be maintained in
functional condition.”
[10] In making this
modification, the undersigned does not add new factual allegations outside of
the original Order and finds that BC Quarries had notice of these allegations and
is not unfairly prejudiced. See Mettiki Coal Corp. , 13 FMSHRC
760, 765 (May 1991).
[11] This regulation states
that “[t]he operator must ensure that each container of a hazardous chemical
has a label. If a container is tagged or marked with the appropriate
information, it is labeled.” As relevant here, 30 C.F.R.
§ 47.42 states that a label must “[d]isplay appropriate hazard warnings”
and “[u]se a chemical identity that permits cross-referencing between the list
of hazardous chemicals, a chemical's label, and its MSDS.” Additionally,
§ 47.11 defines “Identity” as “[a] chemical’s common name or chemical
name” and “Label” as “[a]ny written, printed, or graphic material displayed on
or affixed to a container to identify its contents and convey other relevant
information.”
[12] In relation to another
citation, BC Quarries obliquely argued that it was not liable because the tanks
belonged to a subcontractor and not BC Quarries. July 13 Tr. at 279-80. But
even if the tanks belonged to a contractor, BC Quarries—as the operator of the
mine—is liable for the actions of its contractors. Mingo Logan Coal Co. ,
19 FMSHRC 246, 249 (Feb. 1997) (confirming that an operator is “strictly
liable for all violations of the Act that occur on the mine site, whether
committed by one of its employees or an employee of one of its contractors”
(citing Bulk Transp. Servs., Inc. , 13 FMSHRC 1354 (Sept. 1991)).
[13] This regulation states
that “[r]eadily visible signs prohibiting smoking and open flames shall be
posted where a fire or explosion hazard exists.”
[14] This regulation states
that “[r]eadily visible signs prohibiting smoking and open flames shall be
posted where a fire or explosion hazard exists.”
[15] This regulation states
that “[m]obile equipment shall not be left unattended unless the controls are
placed in the park position and the parking brake, if provided, is set. When
parked on a grade, the wheels or tracks of mobile equipment shall be either
chocked or turned into a bank.”
[16] This regulation states
that “[s]afe means of access shall be provided and maintained to all working
places.”
[17] This regulation states
that “[d]efects on self-propelled mobile equipment affecting safety, which are
not corrected immediately, shall be reported to and recorded by the mine
operator. The records shall be kept at the mine or nearest mine office from the
date the defects are recorded, until the defects are corrected. Such records
shall be made available for inspection by an authorized representative of the
Secretary.”
[18]
As relevant here, this regulation states that “[s]torage tanks for flammable or
combustible liquids shall be -
(1) Capable of withstanding working
pressures and stresses and compatible with the type of liquid stored;
(2) Maintained in a manner that
prevents leakage;
(3) Isolated or separated from
ignition sources to prevent fire or explosion; and
(4) Vented or otherwise constructed
to prevent development of pressure or vacuum as a result of filling, emptying,
or atmospheric temperature changes. Vents for storage of Class I, II, or IIIA
liquids shall be isolated or separated from ignition sources. These pressure
relief requirements do not apply to tanks used for storage of Class IIIB
liquids that are larger than 12,000 gallons in capacity.”
[19] Payment should be sent
to: Pay.gov, a service of the U.S. Department of the Treasury, at https://www.pay.gov/public/form/start/67564508
or, alternately, Mine Safety & Health Administration, U.S. Department of
Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.
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