Secretary of Labor v. Hanson Aggregates Southeast, LLC

Plain-English summary

The parties proposed reducing total penalties across four dockets from $33,756 to $11,801, including large reductions to two orders arising from a haul truck that left a graded road and went over a 201-foot highwall, killing the operator. Hanson Aggregates suggested that a cardiac event might explain both the loss of control and removal of the seat belt, while the Secretary accepted reduced negligence and penalties without endorsing or substantively addressing that theory. The Judge found the explanation speculative and unsupported by information such as an autopsy report. He also emphasized two seat-belt-condition citations issued less than two months before the fatality and questioned an unexplained reference in the motion to dirt on the latch plate. Because the motion did not supply transparent factual support for the reductions required by section 110(k), the Judge denied settlement, directed the parties to schedule a hearing, and ordered the Secretary to provide the inspectors' notes.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.9101 and 56.14131(a)-(b)
• Outcome: The joint settlement motion was denied, and the cases were directed toward hearing with production of the inspectors' notes.
• Key point: Significant reductions in fatality-related penalties require grounded factual explanations, not an operator's unsupported theory and a noncommittal response from the Secretary.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania
Avenue, NW, Suite 520N

Washington, DC
20004-1710

Phone: (202) 434-9933
| Fax: (202) 434-9949

February 5, 2018

SECRETARY
OF LABOR,                                :     CIVIL PENALTY PROCEEDINGS

MINE SAFETY
AND HEALTH                      :

ADMINISTRATION
(MSHA),                        :     Docket No. SE 2017-0062

Petitioner,                          :     A.C.
No. 31-00074-424547

v.                                                   :    

:     Docket
No. SE 2017-0063

HANSON AGGREGATES                                  :
    A.C. No. 31-00074-424547

SOUTHEAST,
LLC ,                                         :

Respondent.                      :
    Docket No. SE 2017-0137

:
    A.C. No. 31-00074-433046

:

:
    Docket No. SE 2017-0175-M

:
    A.C. No. 31-00074-436078

:

:

:

:     Mine:
Neverson Quarry

:

DECISION DENYING SETTLEMENT
MOTION

Before: Judge
Moran

Before
the Court is the Secretary’s Joint Motion to Approve Settlement (“Motion”). The
Motion seeks a combined reduction for the four dockets from the Part 100
proposed figure of $33,756 to $11,801, a 65% reduction overall. For the reasons
which follow, the Motion must be denied.

Most
prominent among the alleged violations in these dockets is that a fatality was
involved. According to the Section 104(d)(1) Order, No. 8816532, issued
November 2, 2016, which is the lone matter in Docket No. SE 2017-0175-M, a haul
truck operator died when the truck he was operating (a CAT 773E Haul Truck S/N
BDA01082) drifted across the haul road, as he was descending the road’s 9%
grade, and went over a 201 foot highwall, landing upside down. [1]
The Order asserts that the truck operator did not maintain control of the truck
while traveling down the haul road and relates that there were no signs of
evasive or corrective actions taken by the truck operator to maintain control. The
Order also states that “[m]anagement engaged in aggravated conduct, constituting
more than ordinary negligence by not ensuring that the victim could operate the
truck safely knowing that he had only a few hours of sleep the night before. The
violation is an unwarrantable failure to comply with a mandatory standard.” Unsurprisingly,
the Order was marked as S&S and with high negligence. The cited standard,
30 C.F.R. § 56.9101, titled, “Operating speeds and control of equipment,”
provides that “[o]perators of self-propelled mobile equipment shall maintain
control of the equipment while it is in motion. Operating speeds shall be
consistent with conditions of roadways, tracks, grades, clearance, visibility,
and traffic, and the type of equipment used.”

Though
discussed in more detail infra , it is noted that this Order, No. 8816532,
was regularly assessed (i.e. there was no special assessment) under 30 C.F. R. Part
100 at $12,075 and is proposed under the motion to be settled for $3,578, a
70.3% reduction.

Also
issued that November day was a Section 104(d)(1) Order, No. 8816533, which is
in Docket No. SE 2017- 0137-M.  It too is the only matter in that docket. The
Order repeats a good measure of the text from the Order just discussed above,
No. 8816532, but adds that the “haul truck operator was not wearing a seat belt
and was ejected from the truck.” The Order then asserts that “[m]anagement
engaged in aggravated conduct, constituting more than ordinary negligence by
not ensuring the truck operators were wearing their seat belts and by not
correcting the altered state of harnesses in the haul trucks .” (emphasis
added). The standard cited in this Order, 30 C.F.R. § 56.14131(a), is titled
“Seat belts for haulage trucks,” and provides “Seat belts shall be provided and
worn in haulage trucks.” As with Order No. 8816532, this Order also asserts
that the violation was an unwarrantable failure to comply with a mandatory
standard, and was marked as S&S and high negligence. As discussed further, infra ,
No. 8816533 was regularly assessed under Part 100 at $13,417 and proposed to be
settled for $3,578, a 73.3% reduction.

The
Court considers it to be significant that, less than two months before the
fatality-related Orders described above were issued, MSHA cited Hanson
Aggregates, on September 14, 2016, with two vehicle-related alleged violations,
one of which involves a subject directly associated with the fatality described
above. These alleged violations are part of this decision denying this
settlement motion. From Docket No. SE 2017-0062, involved is a section 104(d)(1)
citation, No. 8910208, alleging a violation of 30 C.F.R. § 56.14131(b). As
noted, that standard is titled, “Seat belts for haulage trucks,” but in this
instance the subsection cited provides that “[s]eat belts shall be maintained
in functional condition, and replaced when necessary to assure proper performance.”

It
is unclear if the identical haul truck involved in the fatality was cited, but
it was the same truck model, a CAT 773 E haul truck, identified as No. 652252. The
(d)(1) citation states that the “haul truck has a rag tied to both the lap and
shoulder belt. This condition prevents its automated mechanical retraction to
function as designed and will not allow the seat belt to fit firmly against the
operator as intended by the manufacture [sic]. The seat belt in this truck has
been used in this manner for at least three years and does not provided [sic]
protection to the operator [adding, presciently] which could result in fatal
injuries.” The citation concluded with the statement that “[m]anagement has
engaged in aggravated conduct constituting more than ordinary negligence. This
violation is an unwarrantable failure to comply with a mandatory standard.” Citation
No. 8910208. For this alleged violation, the proposed penalty was regularly
assessed under Part 100 at $2,398.00, while the motion seeks a penalty to $722.00,
a 69.9% reduction.

Following
that, issued on the same September 14, 2016 date, and also part of Docket No.
SE 2017-0062, was a 104(d)(1) order, No. 8910209, which order again invoked the
same seat belt subsection, 30 C.F.R. § 56.14131(b). In this instance another haul
truck, also a CAT 769 D, identified as No. 231508, was alleged to have the same
rag arrangement tied to the lap and shoulder belt. The Order makes the same
assertions about the safety hindrances created by the rag ties on the lap and
shoulder belt and reaches the same conclusions about the length of time the rag
arrangement had been in use and that it constituted aggravated conduct beyond
ordinary negligence and was an unwarrantable failure to adhere to the standard.
This alleged violation met the same result; originally proposed at $2,665.00,
the motion seeks to have it settled for $722.00, representing a 72.9%
reduction. [2]

Armed
with that background information, the Court reviewed the Secretary’s Motion. Once
past the Secretary’s customary boilerplate language that he has “evaluated the
value of the compromise, the likelihood of obtaining a better settlement …
etc.” the Secretary presents empty language in support the motion. Therefore, as
the Motion fails to satisfy section 110(k) of the Mine Act, it is rejected.

Discussion

Beginning
with the fatality-related issuances, the Section 104(d)(1) Orders, Nos. 8816532
and 8816533, the Respondent contends that at a hearing, for Citation No.
8816532, the standard requiring one to maintain control of equipment, “it would
present evidence that it is likely that the miner suffered a cardiac
incident while operating the haul truck which might have caused him to
drift across the road and berm and fall 200 feet into the pit below. Respondent
would also argue that the symptoms of a cardiac incident may also
account for his having removed his seatbelt. Respondent would further argue
that the miner was a properly trained, experienced haul truck operator and that
the physical evidence shows that the miner left the haul road suddenly and
there were no signs of corrective steering or breaking. Respondent would also
offer evidence to show that the road and berms were in good condition, the
weather played no role in the incident, there were no other vehicles in the
area, and the truck was in good operating condition.” Motion at 6. ( italics
added). The Secretary endorses none of it, “not admitting the relevance or
significance of Respondent’s arguments.” Id. Yet, for reasons unknown, he
“agrees to reduce the negligence from high to moderate and reduce the penalty
[by 73.3%] to $3,578.00.”

The
Secretary’s vacuous responses to the Respondent’s assertions do not permit the
Commission to meet its Congressionally directed duty under Section 110(k) of
the Mine Act. The Secretary’s non-responses also fly in the face of his claims
of “transparency” in settlement motions. Apart from the lack of any response to
the Respondent’s claims, as presented, those claims amount to nothing more than
speculation. In fact, those claims are speculation upon speculation, as the
Respondent, without supporting information, such as an autopsy report,
speculates further that a cardiac incident may also have caused the deceased
miner to remove his seat belt.

Though
nearly unimaginable, the rationale offered up for Order No. 8816533, the seat
belt requirement and the duty to wear such belt, is less than that of just
discussed Order No. 8816532, and it adds a mysterious aspect. The Motion repeats
the Respondent’s claim that “the miner likely suffered a cardiac while operating
the haul truck which might have caused him to remove his seat belt,” this time
adding that “mine management had no reason to know the miner was not wearing
his seatbelt.” Motion at 7. Disconcertedly, given MSHA’s September 2016 twin citations
to the Respondent for the unsafe rag-ties on the lap and shoulder belt
arrangement, as discussed above, the Respondent asserts that the rags “did not
interfere with the function of the seatbelt.” Id.

The
mysterious element is that the Motion inaccurately represents that “[ t ] he
Order further alleges that there was dirt on the latch plate of the
seatbelt and when coupled with the rags tied around the seatbelt that prevent
retraction, indicate that the miner had not worn his seatbelt for some length
of time.” Id. (emphasis added). The Order only refers to the
uncorrected altered state of harnesses in the haul trucks; it makes no specific
mention of rags tied around the seatbelt and it makes no mention of the dirty seat
belt latch plate. Thus, this had to come from some other source, likely the
inspector’s notes.

To
all of this the Secretary only robotically repeats “[w]hile not admitting the
relevance or significance of Respondent’s arguments, the Secretary agrees to
reclassify the violation to a 104(a) S&S violation, reduce the negligence
from high to moderate, and reduce the penalty [by more than 73%] to $3,578.00.”
Id.

Thus
what has been presented here is a fatality, with very large settlement
reductions, coupled with citations issued before this fatality addressing the
same seat belt concerns and all of that with the absence of any substantive
comment from the Secretary’s representative about the Respondent’s facially
speculative claims in support of the motion’s significant penalty reductions. In
addition, there is the unidentified reference to dirt on the seatbelt latch
plate, and the continued use of rags on the seatbelt.

Is
the Court suggesting that no reductions could ever be justified for these
violations? Absolutely not. The point is that reductions must be explained and
that the only information offered in this instance is speculation from the mine
operator and no useful information from the Secretary. [3]
Given the recent history involving alterations to seat belts at this mine, the
motion is particularly troublesome.

It
is any wonder that, in circumstances such as these, Congress created section
110(k) to ensure that facially questionable settlements be explained to the
Commission. The settlement motion being denied, the parties are directed to
participate in a conference call to set this matter for a hearing. Further, the
Secretary is directed to provide all of the inspector’s notes (Inspectors
Phillips and Caudill) for these citations/orders.

Accordingly,
the Joint Motion to Approve Settlement and to Dismiss Civil Penalty Proceeding
is DENIED .

SO
ORDERED.

/ s/
William B. Moran

William B. Moran

Administrative
Law Judge

Distribution:

Margaret
S. Lopez

Ogletree,
Deakins, Nash, Smoak & Stewart, P.C.

1909 K
Street, N.W., Suite 1000

Washington,
D.C. 20006

Melanie L.
Paul

U.S.
Department of Labor

Office of
the Solicitor

61 Forsyth
St., SW Room 7T10

Atlanta,
GA 30303

[1] For reasons
which will become apparent, the alleged violations are not discussed chronologically.

[2] The Court has
an issue with one of the two alleged violations within Docket No. SE 2017-0063,
Citation No. 8910212, which alleges a violation of 30 C.F.R. § 46.7(a). The
cited standard is titled “New Task Training.” Subsection (a) provides “You must
provide any miner who is reassigned to a new task in which he or she has no
previous work experience with training in the health and safety aspects of the
task to be assigned, including the safe work procedures of such task,
information about the physical and health hazards of chemicals in the miner's
work area, the protective measures a miner can take against these hazards, and
the contents of the mine's HazCom program. This training must be provided
before the miner performs the new task.”  

The
section 104(g)(1) citation alleges that four miners received their task
training from a person who did not meet “the requirements of a competent person
capable of performing the required task training.” For that citation the
settlement retains the proposed penalty but reduces the negligence from “High,”
to “Moderate.” The motion relates, in part, that the Respondent asserts that the
records, though admittedly labeled as “Task Training,” were actually “an
internal company record of an annual observation by the quarry foreman.” Per
usual, the Secretary offers nothing in support of, nor even in reaction to, the
Respondent’s claims. Instead, the Secretary only offers its familiar, empty,
response that “[w]hile not admitting the relevance or significance of
Respondent’s arguments, [he] agrees to modify the negligence to moderate and
maintain the original penalty of $803.00.” Motion at 6.

The
Court has no issue with the other alleged violation in this docket, No.
8910210, which is a section 104(a) citation alleging a violation of 30 C.F.R.
§56.3130. That standard requires that “[m]ining methods shall be used that will
maintain wall, bank, and slope stability in places where persons work or travel
in performing their assigned tasks. When benching is necessary, the width and
height shall be based on the type of equipment used for cleaning of benches or
for scaling of walls, banks, and slopes.” The Citation alleges that the benches
were not sufficient to prevent falling material from reaching the roadway and
work area below. Assessed at $2,398.00, the Motion settles that citation for
the amount proposed and with no changes to the inspector’s evaluation.

[3] Although the
Court has, on occasion, in the context of a settlement motion, requested that
the Secretary provide the inspector’s notes and inquired whether the Secretary
has conferred with the issuing inspector, regarding claims in support of mitigation
made by a mine operator, often the Secretary has declined to provide the information.
These reactions strike the Court as odd because, as to the former, one would
think that the Secretary would, in the name of transparency, be eager to
provide the notes. The same observation applies to the latter, as the issuing
inspector is the only individual for the Secretary with firsthand knowledge of
the violations. Therefore, it seems odd that the Secretary would be reluctant
to inform that the respondent’s contentions have been raised before the
inspector. Unilateral acceptance of a respondent’s claims would likely discourage
inspectors from diligently performing their safety and health inspections
duties.