Secretary of Labor v. Mize Granite Quarries, Inc.

Plain-English summary

An MSHA inspector observed a miner drilling without fall protection on a sloping quarry ledge, within six feet of an edge more than 20 feet above the quarry floor. Mize Granite conceded the violation but argued that the proposed $45,000 penalty would threaten its ability to remain in business. After a hearing, the parties settled without changing the citation's findings. Judge David F. Barbour approved a reduced penalty of $27,250. The order allowed an initial $2,250 payment followed by monthly installments over three years and provided that the full balance would become due after any missed payment.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.15005
• Outcome: The fall-protection citation was settled without modification for $27,250 under a three-year payment schedule.
• Key point: Ability-to-pay concerns may support a reduced penalty and structured payments even when the operator concedes the citation and its safety findings remain unchanged.

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.

MIZE
GRANITE QUARRIES, INC.,

Respondent

CIVIL
PENALTY PROCEEDINGS:

Docket
No. SE 2014-407-M

A.C.
No. 09-01036-353316

Docket
No. SE 2014-408-M

A.C.
No. 09-01036-353316

Mine:
Mize Granite Quarries

DECISION

Appearances:               Charna
Hollingsworth-Malone, Esq., Office of the Solicitor, U.S. Department of
Labor, Atlanta, GA, for Petitioner

Robert W. Mize, III, President, Mize
Granite Quarries, Inc., Elberton,

GA, for Respondent

Before:                        Judge
David Barbour

In Docket No. SE 2014-407-M, arising
under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq. (2012)
the Secretary of Labor (Secretary), on behalf of his Mine Safety and Health
Administration (MSHA) alleges that Mize Granite Quarries, Inc., (Mize Granite
or the company) violated mandatory safety standard 30 C.F.R. 56.15005, at a
granite quarry owned and operated by the company.[1]
The standard requires in pertinent part that [“s]afety belts and lines shall be
worn when persons work where there is danger of falling.” 30 C.F.R. § 56.15005.
The Secretary asserts that on January 14, 2014, MSHA Inspector John Mayer
observed that a miner working on a ledge in the quarry was not wearing fall
protection while drilling within 6 feet of the ledge’s edge. Gov’t Exh. 1. The
ledge slopes downward towards the edge and the edge is more than 20 feet from
the floor of the quarry. Id. The inspector cited Mize Granite for the
alleged violation. He found that the violation was highly likely to cause a
fatality, that the violation was a significant and substantial contribution to a
mine safety hazard and that Mize Granite was highly negligent in allowing the
condition to exist. The Secretary petitioned for the assessment of a civil
penalty of $45,000 for the alleged violation.

After the petition was filed, the
company answered, conceding the violation, but asserting that the penalty would
adversely impact its ability to continue in business. The Commission’s chief
judge assigned the case to the undersigned who directed the parties to engage
in discussions to determine whether they could resolve their differences. When the
parties reported they remained at loggerheads, the undersigned scheduled the
matter for hearing.

The parties agreed to go forward on May
5 - 6, 2015, in Athens, Georgia. The hearing convened as scheduled on the
morning of May 5. At the conclusion of the hearing, the undersigned again urged
the parties to engage in settlement discussions. Tr. 77. After conferring, the
parties reached a settlement.[2] Id. Counsel
for the Secretary explained the settlement as follows:

Citation No.      Date    
30 C.F.R.    Proposed Penalty    Settlement Amount

8811725       1/14/14   56.15005     $45,000                          $27,250

Counsel stated that there are no changes
to the citation. Tr. 78. She also stated that the parties agree a total penalty
of $27,250 is warranted and that they request it be paid with an initial
payment of $2,250, the remainder to be paid over a three-year period at monthly
intervals. Id.

ORDER

The settlement IS APPROVED. Mize
Granite IS ORDERED to pay a total penalty of $27,250.00 for the
violation in question. On August 3, 2015, Mize Granite shall make an initial
payment of $2,250. On the first business day of the next 34 months, Mize
Granite shall pay $714.30, and on the first business day of July, 2018, Mize
Granite shall pay $713.80. Should Mize Granite fail to make a scheduled payment
the entire balance due will be payable.[3] Upon payment
of the full penalty of $27,250.00 this proceeding IS DISMISSED.

/s/ David F.
Barbour

David F. Barbour

Administrative
Law Judge

Distribution (Certified
Mail):

Charna
Hollingsworth-Malone, Esq., Office of the Solicitor, U.S. Department of Labor, 61
Forsyth Street, S.W., Room 7T10, Atlanta, GA 30303

Robert
W. Mize, III, President, Mize Granite Quarries, Inc., P.O. Box 299, Elberton,
GA 30636

/db

[1] The quarry is located in Elberton,
Georgia.

[2] The parties had already submitted
a written settlement for Docket No. SE 2014-408-M, which the court approved on
June 9, 2015. In the decision approving the settlement, the court effectively dismissed
Docket No. SE 2014-408-M.

[3] Payment shall be sent to: Mine
Safety and Health Administration, U.S. Department of

Labor,
Payment Office, P.O. Box 790390, St. Louis, Missouri 63197-0390.