7/11 Materials, Inc. (ALJ decision, June 20, 2012)

Plain-English summary

A miner fell, struck his head, and suffered a concussion and bleeding at 7/11 Materials. MSHA alleged that the company failed to report an injury with a reasonable potential to cause death within 15 minutes. The company said it called emergency services immediately and notified MSHA within 15 minutes after hospital personnel described the injury as serious. The parties settled genuine factual disputes by reducing negligence to low and lowering the proposed $5,000 penalty to $750. Judge Richard W. Manning concluded that the statutory $5,000 minimum governed the Secretary's assessment but did not prevent the Commission from independently assessing a lower penalty in appropriate circumstances. He approved the settlement and ordered payment of $750.

Decision snapshot

• Cited standard: 30 C.F.R. § 50.10(b)
• Outcome: The citation was modified to low negligence and settled for $750 instead of the proposed $5,000.
• Key point: The Commission's independent penalty authority under section 110(i) can support an assessment below the statutory minimum that governs the Secretary's proposed penalty.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

721 19TH STREET, SUITE 443

DENVER , CO
80202-2500

303-844-5267/FAX 303-844-5268

June
20, 2012

SECRETARY OF LABOR,   

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA),  

Petitioner,

v.

7/11 MATERIALS, INC.,

Respondent.

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CIVIL PENALTY PROCEEDING

Docket No. WEST 2011-1228-M

A.C. No. 04-01943-256890

7/11 Materials

DECISION
APPROVING SETTLEMENT

Before:����������� � Judge Manning

��������������������������������

This
case is before me upon a petition for assessment of a civil penalty under section 105(d) of the Federal Mine Safety and Health Act of 1977, as amended (the �Mine Act�).� The Secretary has filed an amended motion to approve settlement of Citation No. 8609256.� The originally assessed amount was $5,000.00.� The Secretary agrees to modify the citation to low negligence and Respondent agrees to a reduced penalty of $750.00.

As
amended, the citation alleges a violation of 30 C.F.R. � 50.10(b).� That regulation requires a mine operator to notify MSHA within 15 minutes �once the operator knows or should know that an accident has occurred involving� . . .
[a]n injury of an individual at the mine which has a reasonable potential to cause death.�� In the present case a miner fell and hit his head, which resulted in a concussion and bleeding.� In its answer, Respondent stated that it does not believe that the injury was life threatening but it did report the injury to MSHA within 15 minutes after it learned from the hospital that the injury was serious.�

����������� Section
110(a)(2) of the Mine Act provides that �[t]he operator of a coal or other mine who fails to provide timely notification to the Secretary as required under section 103(j) (relating to the 15 minute requirement) shall be assessed a civil penalty by the Secretary of not less than $5,000 and not more than
$60,000.�� 30 U.S.C. � 820(a)(2).� Section 103(j) requires mine operators to notify MSHA within 15 minutes �of the time at which the operator realizes that  . . . an injury . . . of an individual at the mine which has a reasonable potential to cause death, has occurred.�  30 U.S.C. � 813(j).� In settling this case, Respondent agrees to withdraw its contest of the citation and the Secretary agrees to reduce the negligence to low.� The reduction in the negligence is based on Respondent�s representation that it called 911 immediately after the miner suffered the injury and reported the injury to MSHA within 15 minutes of learning from medical personnel that the injury was potentially serious.�

����������� I
find that the provisions of section 110(a)(2) of the Mine Act apply in this case.� When the Mine Act was amended to include the language of section 110(a)(2), the Secretary amended section 50.10 to comply with that statutory language.� In this case, the Secretary proposed a civil penalty of $5,000.00 for the alleged violation in compliance with the statutory language.� During settlement negotiations, the Secretary recognized that Respondent would present evidence at a hearing that it contacted MSHA within 15 minutes of learning from medical personnel that the injury was potentially serious.� Respondent contends that, although the injury was serious, it was not life threatening and it notified MSHA in an abundance of caution.� Recognizing that there are genuine issues of material fact as to whether there was a violation of the regulation, the parties agreed to reduce the level of negligence attributable to Respondent to settle the case.

����������� Under section 110(i) of the Mine Act, the Commission has the authority to assess all civil penalties and, although the Secretary proposes penalties, it is the Commission that is responsible for assessing penalties.� Sellersburg Stone Co., 5 FMSHRC 287, 290-91 (Mar. 1983), aff�d. 736 F. 2d 1147 (7rh Cir. 1984).� The Commission�s assessment of penalties is a de novo determination based on the six statutory criteria set forth in section 110(i) of the Mine Act.� I find that section 110(a)(2) of the Mine Act is directed only to the Secretary and not to the Commission or its administrative law judges.� On that basis, I conclude that I have the authority to assess a penalty for a violation of section 50.10 that is less than $5,000.00 in appropriate circumstances.� At least one other administrative law judge has reached the same conclusion.� E.S. Stone & Structure, Inc. 33 FMSHRC 515, 520 (Jan. 2011) (ALJ).�

����������� After considering the facts and circumstances in this case and all six of the statutory criteria, I find that a penalty of $750.00 is reasonable and appropriate.� The parties stipulated to the following.� The issuing MSHA inspector determined that the violation was neither serious nor significant and substantial.� The operator had a history of 17 paid violations over the 15 months prior to May 2, 2011, the date of the present citation.� The mine worked about 9,000 hours in 2011 and employed about four miners.� The violation was abated in good faith and the penalty will not affect the operator�s ability to continue in business.� Respondent�s negligence was low.

I
have considered the representations and documentation submitted and I conclude that the proposed settlement is appropriate under the criteria set forth in section 110(i) of the Act. The amended motion to approve settlement is GRANTED, the citation is MODIFIED as set forth above, and 7/11 Materials, Inc., is ORDERED TO PAY the Secretary of Labor the sum of
$750.00 within 30 days of the date of this decision.1

����������������������������������������������������������������������� /s/ Richard W. Manning���

Richard
W. Manning

Administrative
Law Judge

Distribution:

Rose Darling, Esq., ,Office of
the Solicitor, U.S. Department of Labor, 90 Seventh Street, Suite 3-700, San Francisco, CA 94103-1516

Michael Machado, Safety Manager,
7/11 Materials, Inc., PO
Box 4770 , Modesto ,
CA 95352

/atc

1 Payment should be
sent to the Mine Safety and Health Administration, U.S. Department of Labor, Payment Office, P.O. Box 790390 , St. Louis , MO 63179-0390 .