Mechanicsville Concrete, Inc. t/a Materials Delivery

Plain-English summary

Mechanicsville Concrete operated a sand and gravel pit in Virginia. MSHA cited the company under 30 C.F.R. § 56.14100(b) after an inspector found a front-end loader without a windshield wiper arm and blade. The ALJ found the violation significant and substantial and assessed a $200 penalty, although the citation had not alleged S&S. The Commission held that the ALJ could not designate the violation S&S on the judge’s own initiative, reversed that designation, and affirmed the $200 penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.14100(b)
• Outcome: The S&S designation was reversed, and the $200 civil penalty was affirmed.
• Key point: An ALJ cannot add an S&S designation that the Secretary did not make in the citation.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

                                        June 20, 1996

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. VA 93-145-M
:
MECHANICSVILLE CONCRETE, INC. :
t/a MATERIALS DELIVERY :

BEFORE: Jordan, Chairman; Holen, Marks and Riley, Commissioners1

                                         DECISION

BY: Jordan, Chairman; Holen and Riley, Commissioners

     This civil penalty proceeding, arising under the Federal Mine Safety and Health Act of 1977,

30 U.S.C. § 801 et seq. (1994) (“Mine Act” or “Act”), raises the issues of whether a judge on his own
initiative can designate a violation of a mandatory safety standard to be significant and substantial
(“S&S”)2 and whether the judge’s penalty assessment for the violation was proper. Administrative
Law Judge Arthur Amchan concluded that a violation by Mechanicsville Concrete, Inc. t/a Materials
Delivery (“Mechanicsville”) of 30 C.F.R. § 56.14100(b) (1995)3 was S&S, although the Secretary’s
citation had not contained that allegation, and assessed a penalty of $200. 16 FMSHRC 1444, 1449-
52 (July 1994) (ALJ). The Commission directed review sua

   1
    Commissioner Doyle participated in the consideration of this matter but resigned from

the Commission before its final disposition.
2
The S&S terminology is taken from section 104(d)(1) of the Mine Act, 30 U.S.C.
§ 814(d)(1), which distinguishes as more serious in nature any violation that “could significantly
and substantially contribute to the cause and effect of a . . . mine safety or health hazard . . . .”
3
Section 56.14100(b) provides:

                    Defects 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.

                                               877

Page 2

sponte of the judge’s S &S determination (see section 113(d)(2)(B) of the Act, 30 U.S.C. §
823(d)(2)(B))4 and granted Mechanicsville’s petition for discretionary review only to the extent it
requested review of the penalty. For the reasons that follow, we reverse the judge’s S &S
determination and affirm his penalty assessment.

                                                I.

                              Factual and Procedural Background

     Mechanicsville owns and operates the Branchville pit, a sand and gravel mining operation in

Southampton County, Virginia. 16 FMSHRC at 1445. On May 10, 1993, Charles Rines, an inspector
from the Department of Labor’s Mine Safety and Health Administration (“MSHA”), conducted an
inspection of equipment at the mine, including a front-end loader.
Id. at 1449-50. The vehicle, which could lift and transport more than three tons of material per
bucketful, was used to mine sand and gravel, move raw material to the preparation plant for
processing, and load processed materials into customers’trucks. Tr. I 84-85, 93, 97-98.5

    Inspector Rines observed that the windshield wiper and blade were missing from the vehicle.

16 FMSHRC at 1450. Accordingly, he issued a citation, pursuant to section 104(a) of the Mine Act,
30 U.S.C. § 814(a), alleging a violation of section 56.14100(b). 16 FMSHRC at 1450; Gov’t Ex. 7.
Inspector Rines did not allege the violation was S&S. Id.

    The judge found that Mechanicsville violated the regulation by failing to have a windshield

wiper arm and blade on the front-end loader. 16 FMSHRC 1451. In addition, the judge determined
that the violation was S&S, concluding that he had the authority under section 105(d) of the Mine
Act, 30 U.S.C. § 815(d), to “find an ‘S&S’violation sua sponte . . . .” 16 FMSHRC at 1452. The
Secretary had proposed a civil penalty of $50; the judge assessed a civil penalty of $200 for the
violation. Id.

   4
       Section 113(d)(2)(B) provides in relevant part:

            [A]fter the issuance of a decision of an administrative law judge, the
            Commission may in its discretion . . . order the case before it for
            review . . . . The Commission shall state in such order the specific
            issue of law, Commission policy, or novel question of policy
            involved.
   5
      The hearing was conducted on March 22 and 23, 1994. “Tr. I” refers to the March 22

hearing transcript; “Tr. II” refers to the March 23 hearing transcript.

                                               878

Page 3

                                               II.

                                          Disposition

    The Secretary asserts that the judge did not have authority to find a violation S&S where the

citation issued by the Secretary did not allege an S&S violation. S. Br. at 3-8. He argues that his
enforcement responsibility and authority under the Mine Act are exclusive and that the judge’s action
was, in effect, an attempt to review the Secretary’s enforcement decision. Id. at 5-7. The Secretary
argues that the judge assessed an appropriate penalty. Id. at 9-10.

    Mechanicsville does not take a position on the judge’s authority to find a violation S&S where

the Secretary has declined to do so. Mechanicsville contends, however, that the judge improperly
enhanced the penalty. M. Br. at 4. It submits that the judge erred in denying its motion to strike
certain evidence of prior violations. Id.

   A. Whether the Judge Had Authority to Find the Violation S&S

    We agree with the Secretary that the judge erred in determining on his own initiative that the

violation was S&S. The Mine Act confers enforcement authority upon the Secretary. Thunder Basin
Coal Co. v. Reich, 127 L. Ed. 2d 29, 36, 40 (1994). Under section 103(a) of the Act, 30 U.S.C. §
813(a), the Secretary’s representatives are required to make frequent inspections of mines and to
investigate whether operators are in compliance with the requirements of the Act. Section l04(a)
delegates to the Secretary authority to issue citations for violations of the Act or any mandatory health
or safety standard, rule, order, or regulation promulgated pursuant to the Act. Sections 104(d)(1) and
104(e), 30 U.S.C. § 814(d)(1) and (e), expressly provide that the Secretary possesses authority to
designate a violation S&S. See Consolidation Coal Co., 6 FMSHRC 189, 191-92 (February 1984)
(inspector’s S &S findings under section 104(d)(1)). The Commission adjudicates disputes under the
Mine Act (see sections 105 and 113, 30 U.S.C.
§§ 815 and 823); the Commission has no enforcement responsibility under the Act. See Thunder
Basin, 127 L. Ed. 2d. at 36. The Commission does not have authority to inspect mines, investigate
violations, or issue citations. The Commission has concluded that its administrative law judges are not
authorized representatives of the Secretary and do not have authority to charge an operator with
violations of section 104 of the Mine Act. Mettiki Coal Corp., 13 FMSHRC 760, 764 (May 1991).

    The Supreme Court has held that an administrative agency has virtually unreviewable

discretion in making decisions not to take particular enforcement action relating to its statutory
or regulatory authority. Heckler v. Chaney, 470 U.S. 821, 831-32 (1985); see Brock v. Cathedral
Bluffs Shale Oil Co., 796 F.2d 533, 538 (D.C. Cir. 1986). The Commission has recognized that
the Secretary’s discretion to vacate citations is unreviewable. RBK Construction, Inc., 15
FMSHRC 2099, 2101 (October 1993). We perceive no material difference between the
Secretary’s discretion on the one hand to vacate a citation and his discretion on the other hand
not to issue a citation in the first instance or not to designate a citation as S&S. In making his

                                              879

Page 4

sua sponte determination, the judge essentially made a prosecutorial decision to designate the
citation as S&S in the first instance--an exercise of enforcement authority reserved for the
Secretary--along with an adjudicatory determination to affirm that designation. In so doing, the
judge, contrary to the Mine Act’s statutory scheme, usurped the Secretary’s role of enforcing
the Mine Act.

     The judge claimed authority to designate Mechanicsville’s violation S&S based on

section 105(d) of the Mine Act, which gives the Commission authority to affirm, modify, or
vacate a citation.6 The Commission has held that section 105(d) permits a judge to modify a
citation or order so long as the essential allegations necessary to sustain the modified
enforcement action are contained in the original citation or order. Consolidation Coal Co., 4
FMSHRC 1791, 1793-94 (October 1982). The Commission emphasized that the judge did not
add new findings to create a 104(d)(1) citation. Id. at 1796. By contrast, the Commission has
overturned a judge’s modification of an imminent danger withdrawal order issued under section
107(a) of the Mine Act, 30 U.S.C. § 817(a), to a failure to abate withdrawal order issued under
section 104(b) of the Act, 30 U.S.C. § 814(b). Mettiki, 13 FMSHRC at 764-65. The
Commission reasoned that the modification was not appropriate because the judge added new
findings to create a section 104(b) order. Id. at 765. The Commission emphasized that findings
necessary to establish an imminent danger order were different from findings required to
establish a section 104(b) order. Id. Here, the judge similarly erred by adding a new finding
and conclusion, i.e., that the violation posed a hazard to employees that was reasonably likely to
result in a reasonably serious injury7 and was therefore S&S. 16 FMSHRC at 1450-52.

   6
       Section 105(d) states, as pertinent:

            [T]he Commission shall afford an opportunity for a hearing (in
            accordance with section 554 of title 5 [U.S.C.], but without regard
            to subsection (a)(3) of such section), and thereafter shall issue an
            order, based on findings of fact, affirming, modifying, or vacating
            the Secretary’s citation, order, or proposed penalty, or directing
            other appropriate relief.
   7
        Our dissenting colleague relies on the fact that, in responding to statement 10.B. on the

citation form, “Injury or Illness could reasonably be expected to be,” the inspector checked the
box indicating “Fatal.” Slip op. at 7-8. Commissioner Marks fails to acknowledge that, in
responding to statement 10.A., “Injury or Illness . . . (is),” the inspector checked the box
indicating “Unlikely.” In order to establish the third element of an S&S determination, Mathies
Coal Co., 6 FMSHRC 1, 3-4 (January 1984), requires “a reasonable likelihood that the hazard
contributed to will result in an injury.”

                                              880

Page 5

   B. Whether the Judge Erred in His Penalty Assessment

    In contested civil penalty cases, the Mine Act requires that the Commission make an

independent penalty assessment based on the statutory criteria of section 110(i) of the Act, 30
U.S.C. § 820(i). Sellersburg Stone Co., 5 FMSHRC 287, 291 (March 1983), aff’d, 736 F.2d
1147, 1152 (7th Cir. 1984). The Commission has explained that “[t]he determination of the
amount of the penalty that should be assessed for a particular violation is an exercise of
discretion by the trier of fact. This discretion is bounded by proper consideration of the
statutory criteria and the deterrent purpose underlying the Act’s penalty assessment scheme.” 5
FMSHRC at 294 (citation omitted).

    In reviewing a judge’s penalty assessment, the Commission must determine whether the

penalty is supported by substantial evidence and is consistent with the statutory penalty criteria.8
While “a judge’s assessment of a penalty is an exercise of discretion, assessments lacking record
support, infected by plain error, or otherwise constituting an abuse of discretion are not immune
from reversal . . . .” U.S. Steel Corp., 6 FMSHRC 1423, 1432 (June 1984).

    The judge found that Mechanicsville’s history of violations warranted assessment of a

substantial penalty. 16 FMSHRC at 1452. Mechanicsville claims the judge erred in basing his
penalty assessment in part on violations set forth in Gov’t Exs. 9 through 12. M. Br. at 4.
Mechanicsville asserts that these exhibits should have been stricken, pursuant to its motion made
at hearing, because they were not produced by the Secretary pursuant to Mechanicsville’s
discovery requests. Id.

    We conclude that the judge did not err in refusing to strike the exhibits. The citations

therein were relevant to the issue of the operator’s history of violations. Section 110(i) sets
forth the operator’s history of previous violations as a factor to be considered in assessing a civil
penalty. As the judge correctly noted, all but one of the citations were listed in the Secretary’s
prehearing report, which indicated they might be introduced. Tr. II 13-14, 16-17; S. Resp. to

   8
       The Commission is bound by the substantial evidence test when reviewing an

administrative law judge’s factual determinations. 30 U.S.C. § 823(d)(2)(A)(ii)(I). “Substantial
evidence” means “such relevant evidence as a reasonable mind might accept as adequate to
support [the judge’s] conclusion.” Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163
(November 1989), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). While
we do not lightly overturn a judge’s factual findings and credibility resolutions, neither are we
bound to affirm such determinations if only slight or dubious evidence is present to support them.
See, e.g., Krispy Kreme Doughnut Corp. v. NLRB, 732 F.2d 1288, 1293 (6th Cir. 1984); Midwest
Stock Exchange, Inc. v. NLRB, 635 F.2d 1255, 1263 (7th Cir. 1980). We are guided by the
settled principle that, in reviewing the whole record, an appellate tribunal must also consider
anything in the record that “fairly detracts” from the weight of the evidence that supports a
challenged finding. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).

                                            881

Page 6

Notice of Hr’g at 5. There was no showing of prejudice. See Materials Delivery, 15 FMSHRC
2467, 2469 (December 1993) (ALJ) (three citations in the exhibits had previously been
litigated). 15 FMSHRC at 2469; Tr. II 17. Moreover, Mechanicsville, which was
represented by counsel, asked the judge to strike the exhibits only after they had been admitted
into evidence without objection. Gov’t Ex. 9 (Tr. I 118); Gov’t Ex. 10 (Tr. I 129); Gov’t Ex.
11 (Tr. I 132); Gov’t Ex. 12 (Tr. I 138-39). Failure to object to an offer of evidence when the
offer is made waives on appeal any argument against its admission. 1 John W. Strong et al.,
McCormick on Evidence § 52, at 200 (4th ed. 1992); see In Re: Contests of Respirable Dust
Sample Alteration Citations, 17 FMSHRC 1819, 1864 (November 1995), appeal docketed, No.
95-1619 (D.C. Cir. Dec. 28, 1995).

    Mechanicsville does not dispute the judge’s other penalty criteria findings, including high

negligence and high gravity. 16 FMSHRC at 1452. Accordingly, we conclude that the assessed
penalty was within the judge’s discretion and is supported by substantial evidence.

                                            III.

                                       Conclusion

    For the foregoing reasons, we conclude that the judge lacked authority to find, sua

sponte, that Mechanicsville’s violation was S&S and we reverse the judge’s conclusion that the
violation was S&S. We affirm the judge’s assessment of a $200 civil penalty.

                                          Mary Lu Jordan, Chairman




                                          Arlene Holen, Commissioner




                                          James C. Riley, Commissioner




                                           882

Page 7

Commissioner Marks, concurring in part and dissenting in part:

    The majority has determined that the judge does not have the authority to conclude that

a violation is significant and substantial when the Secretary has failed to formally make such a
charge. I disagree and dissent on this issue.

    In reaching their conclusion, the majority stresses that the Act gives the Commission no

enforcement responsibility and that the Commission has no authority to investigate or inspect
mines, issue citations, or charge operators with section 104 violations. Slip op. at 3. I don’t
disagree generally with that statement. However, I find those observations irrelevant to the
analysis.

    My colleagues veer off the rails by concluding that the judge’s action in this case was

essentially “a prosecutorial decision to designate the citation as S&S in the first instance--an
exercise of enforcement authority reserved for the Secretary . . .” and that in doing so he
“usurped the Secretary’s role of enforcing the Mine Act.” Slip op. at 3-4. They go further,
concluding that the judge “erred by adding a new finding and conclusion, i.e., that the violation
posed a hazard to employees that was reasonably likely to result in a reasonably serious injury
and was therefore S&S.” Slip op. at 4. They are wrong.

    As long recognized by the Commission, and as apparently understood today by the

majority, the Commission’s holding in Consolidation Coal Co., 4 FMSHRC 1791 (October
1982), reflected a recognition that section 105(d) of the Act authorizes the judge to modify
citations “so long as the essential allegations necessary to sustain the modified enforcement
action are contained in the original citation or order.” Slip op. at 4. For reasons explained
below, I conclude that is precisely what occurred in this case, i.e., the judge’s ruling is based on
allegations contained in the original citation. Therefore, I find that the judge acted within his
authority and in accordance with his duty as an administrative law judge when he concluded that
the subject violation was S&S.

     The violation in issue was one of five separate violations charged by the Secretary on

May 10, 1993, and ultimately sustained by the judge. All five violations related to the highly
dangerous condition of the cited front-end loader. In addition to the citation on review, which
was issued because the sole windshield wiper arm and blade was missing, the loader was also
cited for: a broken windshield and right side glass; an inoperable parking brake; an inoperable
horn; and an inoperable back-up alarm. In all citations, except the windshield arm/blade citation,
the inspector checked the S&S box on the citation form. The inspector testified that he did not
check the S&S box on the windshield arm/blade citation because it was not raining at the time
of his inspection. See Tr. I 105-06, 166.

   The majority’s conclusion on this issue is totally reliant upon the fact that the inspector

checked “no” next to the S&S box on Citation No. 4085282. Gov’t Ex. 7 (statement 10. C.).
However, the majority fails to recognize that, on the same citation, in response to statement

                                           883

Page 8

10.B., “Injury or Illness could reasonably be expected to be,” a check appears in the box
indicating “FATAL.” Gov’t Ex. 7 (statement 10.B.) (emphasis supplied). Thus, in this case, the
Secretary came before the judge charging that the violation could reasonably be expected to be
a fatality. At the hearing before the judge, this charge was supported by unrefuted testimony
from the inspector that rain and early morning dew on the windshield causes a “distorted view of
everything in front of you.” Tr. I 104-05.1 Moreover, the inspector testified that the loader is
operated in the early morning and when it is raining. Id. at 105. Significantly, on cross-
examination the inspector refused to agree that there was no likelihood of an accident resulting
from the violation. Id. at 204-06.2 Thus, the record before the judge included: the Secretary’s
charge that the violation could result in an injury reasonably expected to be fatal; the testimony
of the inspector, refusing to agree on cross-examination, that there was no likelihood of an
accident; and most importantly, the inspector’s testimony that he would have checked the box
designating the violation S&S if it had been raining at the time of citation. Given the foregoing,
I conclude that the judge had both a duty and obligation to rectify what was a misapprehension
of law by the inspector.3

   1
      The inspector’s testimony on cross-examination further establishes the dangerous

condition of the loader at the time of citation:

   The windshield was broken in several places. That affected the vision of the
   operator that was operating that piece of equipment. It was spider-webbed in
   front of it. You got an illusion whenever you would look through this broken
   glass.

Tr. I 170.
2
In a purported defense of the dangerous condition of the loader, the operator’s counsel
callously challenged whether a miner would actually be killed by the loader because the ground
was sandy, not hard asphalt, and because the loader was two feet above the ground. Tr. I 165-66,
207-09, 223.
3
The Commission case law is well settled. In evaluating whether a violation is S&S it is
necessary to consider the violation in the context of “continued normal mining operations.” U.S.
Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984); see also Monterey Coal Co., 7 FMSHRC
996, 1001-02 (July 1985). “The operative time frame for determining if a reasonable likelihood of
injury exists includes both the time that a violative condition existed prior to the citation and the
time that it would have existed if normal mining operations had continued.” Rushton Mining Co.,
11 FMSHRC 1432, 1435 (August 1989), citing Halfway, Inc., 8 FMSHRC 8, 12 (January 1986),
and U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (August 1985). Here, the testimony
established that the loader was used in rainy conditions. Tr. I 105.

                                           884

Page 9

The administrative law judge has the duty to determine whether the evidence of record supports
the Secretary’s charge. But for his belief that the absence of rain at the time of citation
restricted him from formally charging S&S, the Secretary’s inspector and principal witness
clearly indicated that he believed the violation was S&S. The judge’s authority is not limited to
either agreeing with the levels of gravity charged by the Secretary or determining that the
Secretary’s charges of gravity should be diminished. The judge also has both the duty and
authority to determine, in view of the record, that the gravity of the charges made by the
Secretary should be increased. The Secretary clearly supports this view.

    To the extent that the judge determines that the evidence presented at the hearing
    indicates that the gravity of a particular violation is higher than that initially
    determined by the Secretary, the judge can properly consider this evidence in
    evaluating the gravity of the violation for purposes of assessing an appropriate
    civil penalty.

S. Br. at 9.

    That is precisely what the judge did in this case. The record clearly indicates that the

Secretary believed the gravity of the violation to be S&S but for his inspector’s misapprehension
of the breadth of the law.

     The majority also intimates that no basis for the S&S conclusion exists in this case. See

Slip op. at 4 (different findings required). I disagree. In this case the evidence in the record is
adequate to determine that all Mathies elements were satisfied. See Mathies Coal Co.,
6 FMSHRC 1, 3-4 (January 1984). Moreover, as the Secretary acknowledges, “the penalty
criterion of gravity encompasses the same factors or evidence evaluated in determining whether
a violation is significant and substantial.” S. Br. at 10 n.7, citing Quinland Coals, Inc., 9
FMSHRC 1614, 1622 n.11 (September 1987).

    For the foregoing reasons, I dissent and would affirm the judge’s conclusion of S&S.




                                                  _____________________________
                                                  Marc Lincoln Marks, Commissioner




                                           885