Secretary of Labor v. Wake Stone Corp.

Plain-English summary

MSHA found inoperative service horns on an excavator and a dozer at Wake Stone's Nash County Quarry. The Commission had already held that both conditions violated 30 C.F.R. § 56.14132(a) and remanded only for penalty assessment. Judge L. Zane Gill found low negligence and unlikely injury because neither machine was operating and Wake Stone's required pre-operation checks discovered the defects before miners were exposed. He agreed that an injury caused by the missing warning would be expected to result in lost workdays or restricted duty. The judge assessed the proposed minimum penalty of $100 for each citation, for a total of $200.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.14132(a) and 56.14100(a)
• Outcome: The two horn violations were assessed at $100 each, and Wake Stone was ordered to pay $200.
• Key point: Discovering an equipment defect during a required check before the machine operates can substantially mitigate negligence and gravity, even though the defect still violates the maintenance standard.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC
20004-1710

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

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

WAKE
STONE CORP.,

Respondent

CIVIL
PENALTY PROCEEDING

Docket
No. SE 2010-0095-M

A.C.
No. 31-02071-197617

Mine:
Nash County Quarry

DECISION ON
REMAND

Before:
           Judge L. Zane Gill

This
case is before me upon remand by the Commission to determine an appropriate
civil penalty for Citation Nos. 6512366 and 6512367.

On April 18, 2014, the Commission
decided that Wake Stone Corp. (“Wake Stone” or “Respondent”) violated 30 C.F.R.
§ 56.14132(a) for both Citation Nos. 6512366 and 6512367 because the service
horns on the Caterpillar 345B excavator and the Komatsu D65Px dozer were “not
maintained in functional condition.” Wake Stone Corp., 36 FMSHRC 825
(Apr. 2014). This now constitutes the law of the case. See Pepper v.
United States, 131 S. Ct. 1229, 1250 (2011).

The undisputed material facts in this
matter are as follows:

·        
On
July 14, 2009, MSHA issued Citation No. 6512366 to Respondent at the Nash
County Quarry.

·        
Citation
Number 6512366 alleges a violation of 30 C.F.R. § 56. 141 32(a).

·        
The
service horn on the Caterpillar 345 B excavator (Company Number 16052), which
was located in the rock breaker area of the pit, was inoperative at the time of
the inspection performed by MSHA on July 14, 2009.

·        
During
the course of this inspection, the inspector requested to inspect the Caterpillar
345 B excavator that was not in operation during the course of the shift.

·        
Christopher
Pons, the Superintendent of the Nash County Quarry, instructed that a pre-operation
examination be completed before the equipment was operated and inspected.

·        
During
the course of the pre-operation inspection, the operator conducting the pre-operation
exam discovered that the service horn of the excavator was not properly
functioning, and informed the MSHA inspector of this.

·        
The
MSHA inspector issued Citation No. 6512366 because of the inoperable horn.

·        
On
July 14, 2009, MSHA issued Citation No. 6512367 to Respondent at the Nash
County Quarry.

·        
Citation
Number 6512367 alleges a violation of 30 CFR 56.14132(a).

·        
The
service horn on the Komatsu D65Px dozer, which was located in the pit area of
the mine, was inoperative at the time of the inspection performed by MSHA on
July 14, 2009.

·        
Also
During the course of this inspection, the MSHA inspector requested to inspect
the Komatsu D65Px dozer that was not in operation during the course of the
shift.

·        
Christopher
Pons again instructed that a pre-operation examination be completed before the
equipment was operated and inspected.

·        
During
the course of the pre-operation inspection, the operator conducting the pre-operation
exam discovered that the service horn of the dozer was not properly
functioning, and informed the MSHA inspector of this.

·        
The
MSHA inspector issued Citation No. 6512367 because of the inoperable horn.

Discussion

As the Commission has ruled that Wake
Stone did violate 30 C.F.R. § 56.14132(a) for Citation Nos. 6512366 and 6512367,
I must now determine the penalty amounts for each based on negligence and
gravity. The MSHA inspector determined that the violations for Citation No.
6512366 and 6512367 were unlikely, lost workdays or restricted duty,
non-significant and substantial, and low negligence.

Here, the two pieces of equipment, the
Komatsu D65Px dozer and the Caterpillar 345 B excavator, were not in operation
at the time the MSHA inspector was inspecting the mine. Since the pieces of
equipment were not in operation, the Respondent required a pre-operational
inspection to be completed before the equipment could be operated and inspected
by MSHA. Only during the course of the pre-operational inspection, which is
required before any piece of equipment is placed in operation, 30 C.F.R. § 56.14100(a),
did the Respondent discover the horns were malfunctioning. As such, it is
reasonable to infer that if the Komatsu D65Px dozer and the Caterpillar 345 B
excavator were to be placed in operation, and any such defect would have been
discovered before the equipment was operated and before miners were exposed to
hazards. That is what happened in this case. These facts mitigate the
Respondent’s negligence. Therefore, I agree with the Secretary’s assessment
that an injury or illness was unlikely[1]
and the operator’s negligence was low.[2]

The
purpose of a horn is to warn people and other equipment in the area. The lack
of an operating horn makes a collision more likely to occur. Therefore, I agree
with the Secretary that if an injury were to occur because of the failure of
the excavator or dozer operator to sound the horn, the injury or illness would reasonably
be expected to be lost workdays or restricted duty.

Penalty

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 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). Thus,
when an operator notifies the Secretary that it intends to challenge a penalty,
the Secretary petitions the Commission to assess said penalty. 29 C.F.R. §
2700.28.

Under
Section 110(i) of the Mine Act, the Commission is to consider the following
when assessing a civil penalty: (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 in abatement of the violative
condition. 30 U.S.C § 820(i). Thus, the
Commission alone is responsible for assessing final penalties. See
Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151-52 (7th Cir. 1984)
(“[N]either the ALJ nor the Commission is bound by the Secretary's proposed
penalties … we find no basis upon which to conclude that [MSHA's Part 100
penalty regulations] also govern the Commission.”); See American Coal Co.,
35 FMSHRC 1774, 1819 (July 2013)(ALJ Zielinski). Although all of
the statutory penalty criteria must be considered, they need not be assigned
equal weight. Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997).

The proposed penalty for Citation Nos.
6512366 and 6512367 and is $100.00 each. The operator has no relevant violation
history for the fifteen months prior to the latest citation date. I have
considered the size of the operator based on the operator’s report to MSHA’s
data retrieval system. The gravity of the violation is unlikely to result in
injury and the negligence is low. There was no indication that the operator
would not be able to continue in business from a $200.00 penalty. Additionally,
the operator demonstrated good faith in abating the violation.

As such, I assess a penalty of $100.00
for Citation No. 6512366 and $100.00 for Citation No. 6512367.

WHEREFORE, it is ORDERED
that Wake Stone pay a penalty of $200.00 within thirty (30) days of the filing
of this decision.

/s/
L. Zane Gill

L.
Zane Gill

Administrative
Law Judge

Distribution:

Robin
Rosenbluth, U.S. Dept. of Labor, Office of the Solicitor, 1100 Wilson Blvd.,
Room 2228, Arlington, VA 22209

W.
Christian Schumann, U.S. Dept. of Labor, Office of the Solicitor, 1100 Wilson
Blvd., Room 2220, Arlington, VA 22209

Mark
Savit, Jackson Lewis, LLP, 950 17th Street, Suite 2600, Denver, CO
80202

Donna
Vetrano Pryor, Jackson Lewis, LLP, 950 17th Street, Suite 2600,
Denver, CO 80202

[1] The gravity
penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. § 820(i), “is
often viewed in terms of the seriousness of the violation.” Consolidation
Coal Co., 18 FMSHRC 1541, 1549 (Sep. 1996) (citing Sellersburg
Stone Co., 5 FMSHRC 287, 294-95 (March 1983), aff'd, 736 F.2d 1147
(7th Cir. 1984) and Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 681
(April 1987)). The gravity analysis focuses on factors such as the likelihood
of an injury, the severity of an injury, and the number of miners potentially
injured. The Commission has recognized that the likelihood of injury is to be
made assuming continued normal mining operations without abatement of the
violation. U.S. Steel Mining Co., 7 FMSHRC at 1130.

[2] Low negligence
is when “[t]he operator knew or should have known of the violative condition or
practice, but there are considerable mitigating circumstances.” 30 C.F.R.
§ 100.3(d).