Secretary of Labor v. Lehigh Cement Company, LLC

Plain-English summary

The settlement resolved 12 citations at Lehigh Cement's Nazareth Plant I, including missing or damaged conveyor guards, extensive housekeeping hazards, and unsafe access beside a pond with a nine-foot drop. The agreement reduced several negligence and gravity findings, removed S&S from three citations, and cut total proposed penalties from $35,274 to $17,610. Judge Moran focused on photographs the inspectors took but the settlement record did not provide, criticized reliance on emergency cords, handrails, clean-up tools, or the absence of miners at the inspection as legally irrelevant alternative protections, and questioned the low-negligence reduction for the pond access hazards. He nevertheless approved the 50% overall reduction under Commission precedent limiting settlement review.

Decision snapshot

• Cited standards discussed: 30 C.F.R. §§ 56.14112(a)(1), 56.20003(a), and 56.11001
• Outcome: Twelve admitted citations were settled for $17,610, half of the $35,274 proposed total.
• Key point: The Judge criticized major reductions based on unavailable photographs and considerations excluded from S&S analysis but approved the agreement under controlling Commission settlement decisions.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMISSION

Office of Administrative Law Judges

1331 Pennsylvania Avenue, N.W., Suite 520N

Washington, DC 20004

Office: (202) 434-9933 / Fax: (202) 434-9949

|
SECRETARY OF LABOR MINE SAFETY AND HEALTH ADMINISTRATION (MSHA), Petitioner
v.
LEHIGH CEMENT COMPANY, LLC, Respondent |
|
|
CIVIL PENALTY PROCEEDING
Docket No. PENN 2022-0133 A.C. No. 36-00190-562077
Mine: Nazareth Plant I |

DECISION APPROVING 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 Conference and Litigation Representative,
(“CLR”), has filed a motion to approve settlement. The originally assessed
amount was $35,274.00 and the proposed settlement is for $17,610.00,
representing a 50% overall reduction in the penalty for this docket. The
changes are reflected in the following table:

|
|
|
|
|
|
9667158 |
$8,549.00 |
$3,841.00 |
Modify to Low negligence.
|
|
9667164 |
$1,869.00 |
$378.00 |
Change “injury or illness” to “unlikely; and not significant & substantial.
|
|
9667165 |
$1,869.00 |
$378.00 |
Change “injury or illness” to “unlikely; and not significant & substantial.
|
|
9667160 |
$296.00 |
$296.00 |
None |
|
9667161 |
$3,274.00 |
$1,472.00 |
Modify to Low negligence.
|
| 9667163 |
$661.00 |
$296.00 |
Modify to Low negligence.
|
|
9667166 |
$3,274.00 |
$3,274.00 |
None |
|
9667167 |
$4,884.00 |
$662.00 |
Change “injury or illness” to “unlikely; and not significant & substantial. Modify to Lost Workdays or Restricted Duty.
|
|
9667168 |
$4,884.00 |
$3,274.00 |
Modify to Lost Workdays or Restricted Duty.
|
|
9667169 |
$4,884.00 |
$3,274.00 |
Modify to Lost Workdays or Restricted Duty.
|
|
9667170 |
$169.00 |
$169.00 |
None |
|
9667171 |
$661.00 |
$296.00 |
Modify to Low negligence.
|
|
|
|
|
|

Citation No. 9667165, issued by MSHA Inspector Kyle C. [Stofko], invoked [30 C.F.R. §
56.14112(a)(1)]. That standard speaks to the construction and maintenance of
guards. It plainly and clearly provides that “[g]uards shall be constructed and
maintained to (1) [w]ithstand the vibration, shock, and wear to which they will
be subjected during normal operation.” Here, the inspector found “the tail
guard of the 694 conveyor was missing the left and right guards.
This condition has exposed the winged tail pulley to contact approximately
36" f[ro]m the catwalk. The rear guard was also
bent and deformed creating jagged edges and openings to the tail pulley and
is against the travelway. Guards shall be constructed and maintained to withstand
the vibration, shock, and wear to which they will be subjected during normal
operation. The area is accessed on a regular basis. This condition has existed
for an unknown amount of time and exposes persons to permanently disabling
injuries. Photos taken.

Penalty Petition at 18 (emphasis added).

The Secretary requests Citation No.
9667165 be modified to unlikely and to delete the significant and substantial
designation, resulting in an 80% reduction in the penalty from $1,869.00
to $378.00 for this now-admitted violation. The Secretary’s motion states
that “the Respondent would present evidence that the tail section of 694
conveyor had guards in place to prevent accidental contact. The
framework and location of the emergency stop cable would make contact with the
moving machine parts difficult.” Motion at 3. (emphasis added).

Analysis for Citation No. 9667165 with its 80% penalty
reduction

**In
violations such as this, the Court believes it should be able to view critical,
likely dispute-ending, photographs. **

Further,
the Secretary should cease advancing irrelevant considerations on the subject of
significant and substantial violations, as the United States Courts of Appeal
have definitively addressed that subject.

** **In putative support for reducing
the penalty to $378.00, the Secretary offers two assertions: 1. the Respondent’s
claim that the conveyor had guards in place and 2. the emergency stop cord
would make contact with the moving machine parts difficult.

As
to the first assertion, there is direct conflict with the inspector’s words
that the tail guard of the 694 conveyor was missing the left and right
guards. Further, the motion says nothing about the third hazard identified in
the citation – that the rear guard was also bent and deformed, creating jagged
edges and openings to the tail pulley and against the travelway. Inspector Stofko
wisely took photographs of what he observed. The Court applauds the inspector’s
taking photographs as they can provide useful supportive evidence. The Secretary
makes no mention of the photographs in the motion.

Those
photos would likely put to rest the issue of the guards, but the Commission
forbids its front-line reviewers of settlement motions, its administrative law
judges, from seeing the photographs. The federal courts have noted on numerous
occasions that “[a] picture is worth a thousand words. A photograph, especially
when coupled with text, can convey a powerful message.” Manzari v. Assoc.
Newspapers, 830 F.3d 881 (9th Cir. 2016), Harris-Billups v. Anderson, 61
F.4th 1298, 1300 (11th Cir. 2023). However, none of the thousands of pictorial
‘words’ in this docket are available for the Court to see.

The
second assertion, that the emergency stop cord would make contact with
the moving machine parts difficult, is to have no part in the analysis as it is
not to be considered in evaluating whether a violation is “significant and
substantial.” Yet, despite the Court reminding the Secretary on many, many
occasions that such irrelevancies are off the table, the Secretary continues to
assert them. Whether out of brazenness or ignorance, the Court does not know
why these continue. However, the federal courts of appeals have made it clear,
rejecting such alternative safety measures as cognizable excuses. For example,
in Knox Creek Coal, 811 F.3d 148 (4th Cir. 2016), that Court observed:

“[i]f mine operators could avoid S
& S liability—which is the primary sanction they fear under the Mine Act—by
complying with redundant safety standards, operators could pick and choose the
standards with which they wished to comply.”…Such a policy would make such
standards “mandatory” in name only. It is therefore unsurprising that other
appellate courts have concluded that ‘[b]ecause redundant safety measures have
nothing to do with the violation, they are irrelevant to the [S & S]
inquiry.’ Cumberland Coal, 717 F.3d at 1029; see also Buck Creek,
52 F.3d at 136.

Knox
Creek Coal, 811
F.3d 148, 162 (4th Cir. 2016).

Further
regarding this issue, in Consolidation Coal, 895 F.3d 113, (D.C. Cir.
2018), the D.C. Circuit, referring to its decision in Cumberland Coal
Resources, LP v. Federal Mine Safety & Health Review Commission, 717
F.3d 1020 (D.C. Cir. 2013), noted that it:

interpreted the statutory text to focus
on the “nature” of “the violation” rather than any surrounding circumstances.
More to the point, the court held that “consideration of redundant safety
measures,”—that is, “preventative measures that would have rendered both
injuries from an emergency and the occurrence of an emergency in the first
place less likely”—“is inconsistent with the language of [Section] 814(d)(1).” Id.
at 1028–1029.

Id. at 118-119.

As the D.C. Circuit further
held in Consolidation Coal, 895 F3d 113 (D.C. Cir. 2018):

Ample Commission
precedent holds that such considerations are irrelevant to the likelihood-of-injury
analysis. That is because the third prong of the Mathies test focuses on
the risk of injury created by the safety violation itself. See, e.g.,
Secretary of Labor v. Black Beauty Coal Co., 38 FMSHRC 1307, 1313–1314
(2016) (“[T]he methane monitor, fire suppression system and devices, water
sprays, CO monitors, fire brigade, breathing devices and turnout gear for firefighters
are the sort of safety measures that we, and the appellate courts, have held to
be irrelevant to the [significant and substantial] analysis under
the Act.”); Secretary of Labor v. Brody Mining, LLC, 37 FMSHRC 1687,
1691 (2015) (“When deciding whether a violation is [significant and substantial],
courts and the Commission have consistently rejected as irrelevant evidence
regarding the presence of safety measures designed to mitigate the likelihood
of injury resulting from the danger posed by the violation.”). The Commission
itself has characterized this rule as “well settled.” Black Beauty Coal Co.,
38 FMSHRC at 1312.

The same is true of
miner precaution. Because the safety standards are there to protect miners, the
hope or expectation that miners will protect themselves “is not relevant under
the Mathies test.” Secretary of Labor v. Newtown Energy Inc., 38
FMSHRC 2033, 2044 (2016); see also Secretary of Labor v. Eagle Nest, Inc.,
14 FMSHRC 1119, 1123 (1992) (“We reject the judge’s conclusion that the
‘exercise of caution’ may mitigate the hazard.”); Secretary of Labor v. United
States Steel Mining Co., 6 FMSHRC 1834, 1838 (1984) (dismissing argument
that the violation of a cable marking requirement was not reasonably likely to
cause injury because miners could determine the identity of cables by process
of elimination); Secretary of Labor v. Great W. Elec. Co., 5 FMSHRC 840,
842 (1983) (considering miner skill “ignores the inherent vagaries of human
behavior”). As the Commission has pointed out, while “miners should, of course,
work cautiously, that admonition does not lessen the responsibility of operators,
under the Mine Act, to prevent unsafe conditions.” Eagle Nest, Inc., 14
FMSHRC at 1123. This reading also has the benefit of advancing the stated purpose
of the Mine Act, which gives “the first priority and concern” to the “health
and safety of its most precious resource—the miner,” in view of “an urgent need
to provide more effective means and measures for improving the working
conditions and practices in the Nation’s coal or other mines in order to prevent
death and serious physical harm.” 30 U.S.C. § 801(a), (c).

This court’s precedent
is of the same mind. In Secretary
of Labor v. Federal Mine Safety & Health Review Commission (Jim Walter Resources, Inc.), 111 F.3d 913 (D.C. Cir. 1997), this court held that the Commission could not rely on
aggravating facts external to a safety violation to conclude that the violation
was of such nature as to significantly and substantially contribute to a
hazard, id. at 915. The Secretary’s
reading of Mathies relies on this same principle in reverse: that
circumstances external to a violation cannot be used to reduce the likelihood
that harm will ensue.

Likewise, in Cumberland Coal Resources, LP v.
Federal Mine Safety & Health Review Commission, 717 F.3d 1020 (D.C. Cir. 2013), this court again interpreted [the
statutory text to focus on the “nature” of “the violation” rather than any
surrounding circumstances. More to the point, the court held that “consideration
of redundant safety measures,”—that is, “preventative measures that would have
rendered both injuries from an emergency and the occurrence of an emergency in
the first place less likely”—“is inconsistent with the language of [Section]
814(d)(1).”]Id. at 1028–1029.”

[Consolidation Coal], 895 F.3d 113,118-119 (D.C. Cir. 2018)

Yet, in the face of these
decisions from the federal courts of appeals, the Secretary, in this instance
through its non-attorney representatives – Conference Litigation Representatives,
in this case, Mr. Ridley, habitually repeat such rejected bases. The
Court places this continued use of such irrelevant claims squarely on the Secretary.
As non-attorneys, the CLRs are fed these assertions, merely reciting what they
are told by the Solicitor to include in the motions. It is unfair to foist their
misstatements on them. They simply repeat what they are told to include in settlement
motions. As such, the Secretary, through the façade of CLRs, cannot deliberately
misstate or ignore case law that is unfavorable to her position. See, Teamsters v.
B&M Transit, 882 F.2d 274, 280 (7th Cir. 1989),[1]Robb v Electronic Data, 990 F.2d 1253 (5th Cir. 1993), EEOC v Taylor
Electric, 155 F.R.D. 180, (N.D. Ill. 1994), Home Casual Enterprise, 2013
WL 4821311 (W.D. Wis. 2013) (citing Teamsters v. B&M Transit,
Inc., at 280).

**Citation No. 9667164 **

** For Citation No. 9667164, MSHA
Inspector Stofko found a nearly identical, and arguably worse, violation of the
same guarding standard, 30 C.F.R. § 56.14112(a)(1). This now-admitted violation
was found on the same day as Citation No. 9667165, a mere 15 minutes
earlier.

The Inspector’s description of the condition informed:

While inspecting the finish mill
located at plant 1, it was found that the 633 conveyor head section and
the Gypbelt head section ** were both missing multiple guards** for the
pulleys and drive components. The conveyor head sections were directly stacked
over each other. This area is accessed on a regular basis for travel greasing
and maintenance. Guards shall be constructed and maintained to withstand the
vibration, shock, and wear to which they will be subjected during normal
operation. All unguarded hazards were less than 7' from the catwalk. These
conditions have existed for an unknown amount of time. Persons injured as a
result of the violation cited would receive permanently disabling injuries. Photos taken.

Penalty petition at 16 (emphasis added)

Given
the recounting above for Citation [No. 9667165], one
will not be surprised to read that the non-attorney representative for the
Secretary offers the same serving for listing the gravity as ‘unlikely,’ and removing
the significant and substantial designation:

The Respondent would present
evidence that the 633 conveyor and Gyp belt had guards in place to prevent
accidental contact with the moving machine parts. *The location is not easily
accessible to miners. *

Motion at 3 (emphasis added).

There is no indication that the federal appeals courts have said that such improper considerations would be acceptable when presented in settlement motions, as opposed to a hearing, as such an inconsistent stance would not be logical.

**Analysis
for Citation No. 9667164 **

Here
too, the inspector’s photos would likely resolve the claim about the presence,
or lack thereof, of guards. There is no point in recounting the problems
identified by the Court regarding Citation No. 9667165 because they are same.
While the Court is obligated to follow Commission case law and does so respectfully,
it is of the view that if important photographs cannot be viewed by the Commission’s
administrative law judges and if the Secretary is continued to be permitted to
cite irrelevant considerations in settlements, forbidden by the federal courts
of appeals, in those situations section 110(k) is at risk of becoming a phantom
requirement.

It
is the Court’s best recollection that only one commissioner expressed that the Commission’s
judges may not see photographs when reviewing settlements. These subjects were not
expressly covered in the Commission’s decisions in The American Coal Co.,
40 FMSHRC 983 (Aug. 2018) and Rockwell Mining, LLC, 40 FMSHRC 994 (Aug.
2018) for the standard to be applied by Commission administrative law judges
when reviewing such settlement motions under the Commission’s interpretation of
section 110(k) of the Mine Act. It is the Court’s hope that as these
identified problems were not addressed in those decisions, and therefore not
contemplated, the Commission may address them.

**Citation
No. 9667167 **

This
now-admitted violation of [30 C.F.R. § 56.20003(a)],
was also issued by MSHA Inspector, Kyle Stofko. The standard, titled, “Housekeeping,”
provides that “Workplaces, passageways, storerooms, and service rooms shall be
kept clean and orderly.” The citation stated in the condition or practice
section:

Located in the area of the 523 pan
drive it was found that the floor contained spillage and various debris
throughout the floor. [This area was traveled through in
the condition cited.]The spillage was clinker up to 2" in size on the
smooth floor. There was also found piled machine parts in areas that would
require travel for the 521disconnect. The affected floor area containing
spillage was approximately 20' x 15'. Workplaces and passageways shall be kept
clean and orderly. This condition has existed for an unknown amount of time and
exposes persons to permanently disabling injuries. ** Photos taken**. Standard
56.20003(a) was cited 37 times in two years at mine 3600190 (36 to the operator,
1 to a contractor).

Penalty petition at 22. (emphasis added).

The motion presents the following:

The Secretary requests
Citation No. 9667167 be modified to unlikely and delete the significant and
substantial designation with lost workdays or restricted duty. The Respondent would
present evidence that the area of the 523-pan feeder is located under the
stairwell and is not regularly traveled or in a regular travelway. The injury
expected from a slip trip or fall to the floor would result in lost workdays or
restricted duty. No [miners were in the area at the time
of the inspection.]

Motion at 4.

Analysis
for Citation
No. 9667167

No
stranger to the requirements of this “Housekeeping” standard, in this docket
alone, fully eight (8) of the twelve (12) citations involved violations
of 30 C.F.R. § 56.20003(a). All eight have been admitted to being violated.
Not mentioned by the CLR in the motion, and not disputed, is that the
affected area had clinker up to 2 inches in size on the smooth floor and piled
machine parts over the approximate 20 feet by 15 feet area.

The
motion suffers from several significant deficiencies. The Respondent admits
that the floor is traveled, contending only that it is not regularly traveled.
The Respondent does not challenge that the floor contained spillage and various
debris throughout the cited area, nor does it dispute the area involved, nor
that the floor was smooth, nor that “[t]his area was traveled through in the
condition cited.” With no basis for the claim, the Respondent asserts that the
expected injury would be lost workdays or restricted duty. The MSHA inspector
listed the expected injury as ‘permanently disabling.’ Further, the claim that an
injury would be limited to lost workdays or restricted duty qualifies as a
reasonably serious injury and consequently does not impair the inspector’s ‘significant
and substantial’ designation.

In
asserting that “[n]o miners were in the area at the time of the inspection,” the
CLR, and therefore the Secretary who instructs the CLRs what to assert in
settlement motions, ignores that the evaluation of whether a violation is ‘significant
and substantial’ is measured by examining continued normal mining operations,
without any assumptions as to abatement. Mach Mining,
809 F.3d 1259, 1267 (D.C. Cir. 2016). Thus, the remark that no miners were in
the area at the time of the inspection is an impermissible consideration.
“[I]njuries resulting in lost workdays or restricted duties … establishes that
the hazard contributed to by the violations would be reasonably likely to
result in an injury of a reasonably serious nature as required by our S&S
analysis.” Spartan Mining, 35 FMSHRC 3505, 3509 (Dec. 2013). The Secretary
should instruct its non-attorney representatives to cease including impermissible
factors in the evaluation of whether a violation is significant and substantial.[2]

Not to
be ignored is Citation No. 9667158.

Citation
No. 9667158

This Citation
for which the Secretary seeks a 55% reduction in the regularly assessed
proposed penalty presented and extremely serious situation, for which none of
the facts in the Condition or Practice section are disputed. That section states:

While inspecting the level 5 sump pumps in the Plant 2 quarry it was found that safe access was not maintained. The access path from the water truck fill area to the pump control switch was found to be along the edge of the pond that had a 9' shear drop to the water below. The path was uneven with large loose rock and found to be within 3' of the edge of the pond. The pump control switch was also within 4' of the edge of the pond. The catwalk access for the pumps was found to be broken away from the anchoring block and secured with a come-along and a cable. This condition created a gap between the anchoring block ( That doubles as a flat access platform) and the catwalk. This access point also is located at the edge of the pond at the 9' drop to the water below. Safe means of access shall be provided and maintained to all working places. There was no personal floatation devices available in this area. The area is normally accessed by one person multiple times per day to fill the water truck and the pumps are accessed 2 times per month for pump maintenance. The conditions cited have existed since May of 2022. Persons injured as a result of the violation cited would receive fatal injuries. Photos taken.

Penalty Petition at 6.

Here again, the diligent Inspector Stofko took photographs to record what he observed.

The
Secretary’s Motion requests [Citation No.][9667158]be modified to Low negligence. The Respondent
would present evidence that a miner took it upon himself to use a frontend
loader to modify the area without management’s knowledge. The condition was not
reported to the mine operator on the workplace exams.

Analysis
for Citation No. 9667158

The multiple, extensive, hazards, as described above, cannot be brushed aside on the frontend loader operator because several of them could not have been created by the operation of that machine. Further, while the offered excuse could arguably be a basis for moderate negligence, a level of negligence the issuing inspector bestowed on the operator, it could not be a basis for low negligence as no ‘considerable’ mitigating circumstances were offered in the settlement for this violation.

Conclusion

Despite the many troublesome aspects discussed in this decision, the Court is presently constrained
when reviewing motions for approval of settlement. As such, it has considered
the Secretary’s Motion and approves it solely on the basis of the
Commission’s decisions in The American Coal Co., 40 FMSHRC 983 (Aug. 2018)
and Rockwell Mining, LLC, 40 FMSHRC 994 (Aug. 2018) for the standard to
be applied by Commission administrative law judges when reviewing such
settlement motions under the Commission’s interpretation of section 110(k) of
the Mine Act. Per the Commission’s decisions on the scope of a judge’s review
authority of settlements, the “information” presented in this settlement motion
is sufficient for approval.

Accordingly, the motion to approve settlement is GRANTED, the citations
contained in this docket are MODIFIED as set forth in the table above
and Lehigh Cement Company, LLC is ORDERED to pay the Secretary of Labor the sum of $17,610.00
within 30 days of this order.[3].

Upon receipt of payment, this case is DISMISSED.

/s/
William B. Moran

William B. Moran

Administrative Law Judge

Distribution:

Norman C.
Ridley, Conference and Litigation Representative, U.S. Department of Labor,
MSHA, 178 Thorn Hill Road, Suite 100, Warrendale, PA 15086 [email protected]

Philip K. Kontul,
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, PC, One PPG Place, Suite 1900,
Pittsburgh, PA 15222 [email protected]

[1] Teamsters v.
B&M Transit
cites a host of other cases for this principle: a
party is not entitled to deliberately ignore
or misstate case law that is unfavorable to its
position. See Fred A. Smith Lumber Co. v. Edidin, 845 F.2d 750, 753 (7th
Cir. 1988); Szabo Food Service, 823 F.2d at 1081.Id.

[2] This ignorance over the requirement
that the ‘significant and substantial’ determination is to be measured by
examining continued normal mining operations, without any assumptions as to abatement,
and that alternative safety measures are not a cognizable excuse, is repeated throughout
this settlement motion as noted below, with the bold text below showing the
improperly asserted grounds which pertain to three of the other citations in
this docket:

For Citation
No. 9667163,
the Secretary requests it be modified to Low negligence. **The Respondent would
present evidence that the area of the 616-dust collector has been provided with
hand tools and a suction hose that are readily available in case of any spillage.
The miners have received training to clean the area prior to walking through
the area. **

For Citation
No. 9667168,
the Secretary requests it be modified to lost workdays or restricted duty. The
Respondent would argue that the injury expected from a slip, trip or fall in
the area around the 522 elevator and the 521 conveyor would result in lost
workdays or restricted duty. **The area has a significant handrail around that
outer edge of the elevated platform to prevent falling to levels below. **

For Citation
No. 9667169, the
Secretary requests that it be modified to lost workdays or restricted duty. The
Respondent would present evidence that injury expected from a slip, trip or
fall on the 550-dust collector landing would result in lost workdays or restricted
duty. **The outer edge is provided with a significant handrail system
consisting of a mid-rail and upper rail. **

To Inspector Stofko’s credit, he also took photos for each of these now-admitted violations he observed: Citation No. 9667163, Citation No. 9667168, and Citation No. 9667169.

[3]
Penalties may be paid electronically
at Pay.Gov, a service of the U.S. Department of the Treasury, at
https://www.pay.gov/public/form/start/67564508. Alternatively, send payment
(check or money order) to: U.S. Department of Treasury, Mine Safety and Health
Administration, P.O. Box 790390, St. Louis, MO 63179-0390. Please include
Docket and A.C. Numbers. It is vital to include Docket and A.C. Numbers when
remitting payments.