Secretary of Labor v. John Richards Construction

Plain-English summary

MSHA cited John Richards Construction at its small Montana sand and gravel pit after the operator could not produce current fire-extinguisher inspection records and an accessible elevated walkway lacked a 23-inch section of handrail. Judge Jacqueline R. Bulluck denied the operator's recusal request and motions to reconsider simplified proceedings and a transcript ruling because adverse procedural decisions did not show bias or justify reversal. She held that the extinguisher citation was established by the missing documentation even if the annual checks had actually occurred, and that a handrail violation existed despite ongoing repairs because the nine-foot-high walkway remained open without a barricade or warning. The Judge granted summary decision to the Secretary, affirmed both citations, and assessed penalties of $100 each. The Commission later vacated summary decision on the extinguisher citation, holding that missing records alone did not conclusively prove the required inspection had not occurred, and remanded that citation for further proceedings.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.4201(a)(2) and 56.11002
• Outcome: Both citations were affirmed on summary decision, and penalties totaling $200 were assessed.
• Subsequent review: The Commission later vacated and remanded the extinguisher ruling in west-2014-440-m-commission.
• Key point: An accessible elevated walkway must remain protected during repairs, while later Commission review held that absent extinguisher records alone do not prove the inspection itself was omitted.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania
Avenue NW, Suite 520N

Washington, D.C. 20004

SECRETARY OF LABOR

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Petitioner,

v.

JOHN RICHARDS CONSTRUCTION,

Respondent.

CIVIL PENALTY PROCEEDING

Docket No. WEST 2015-101-M

AC No. 24-020270-361812

Mine: Richards Pit

SUMMARY DECISION

ORDER DENYING MOTION FOR RECUSAL

ORDER DENYING MOTIONS FOR RECONSIDERATION

Before:                        Judge Bulluck

This case is before me upon a Petition for
Assessment of Civil Penalty filed by the Secretary of Labor (“Secretary”) on
behalf of the Mine Safety and Health Administration (“MSHA”) against John
Richards Construction (“JRC”), pursuant to section 105(d) of the Federal Mine
Safety and Health Act of 1977 (“Act”), 30 U.S.C. § 815(d). The Secretary seeks
a total penalty of $200.00 for two alleged violations of his mandatory safety
standards regarding yearly inspection of fire extinguishers and maintenance of
a handrail on an elevated walkway.

The Secretary filed a Motion for
Summary Decision (“Sec’y Mot.”) with attached exhibits (“Exs. P-1 through
P-8”), including the Declaration of MSHA Inspector David J. Small and his
inspection notes for both citations. JRC responded with a Brief in Opposition
to Secretary’s Motion for Summary Decision (“Resp’t Br.”), with attached
Affidavit of Mark C. Smith and Fire Extinguisher Records covering years 2013
and 2014 (“Exs. R-1 and R-2”), that also moves for my recusal, for
reconsideration of the Order Granting Secretary’s Motion for Simplified
Proceedings, and the Order Denying Transcript Request.

I.          Procedural Rulings

Commission Rule 81(b) permits a party to request
that a Judge withdraw from a proceeding on grounds of personal bias or other
disqualification by setting forth in detail the matters alleged to constitute
personal bias or other disqualification in an affidavit. 29 C.F.R.   §
2700.81(b). JRC alleges that I colluded with counsel for the Secretary to
circumvent JRC’s rights, as evidenced by my decision to continue the originally
scheduled September 9, 2015 hearing. Resp’t Br. at 2. This argument fails in
that unfavorable “judicial rulings alone almost never constitute a valid basis
for a bias or partiality motion” absent evidence of “deep-seated

favoritism or antagonism as would make fair judgment
impossible.” Medusa Cement Co.,    20 FMSHRC 144, 148-49 (Feb. 1998)
(quoting Liteky v. United States, 510 U.S. 540, 555 (1994)); Rock of
Ages Corp., 20 FMSHRC 106, 125 (Feb. 1998) (citing Liteky for the
proposition that judicial rulings are inadequate grounds for disqualification).
As stated during conference calls with the parties and in an email from my law
clerk, I rescheduled the hearing to allow the parties an opportunity to
continue negotiation over the citations at issue, to permit additional time for
issuance of my summary decision in the companion docket, WEST 2014- 440-M, and
to consider any motions filed by the parties in the instant matter, including a
motion for summary decision by either or both parties. Since my decision to
continue the hearing was grounded in the undisputed facts of this case, as
stated by John Richards, himself, and agreed to by the Secretary’s counsel,
Lauren Polk, and was consistent with my fundamental duties to preside over this
proceeding, JRC’s motion for my recusal is, hereby, DENIED.

JRC’s motions for reconsideration of the Order
Granting Secretary’s Motion for Simplified Proceedings, and the Order Denying
Transcript Request have been considered.     See Resp’t Br. at 1-2. JRC does
not, however, present any new information or sufficient basis to reverse either
decision. Therefore, JRC’s motion for reconsideration of the Order Granting
Secretary’s Motion for Simplified Proceedings is, hereby, DENIED; and
JRC’s motion for reconsideration of the Order Denying Transcript Request is,
hereby, DENIED.

II.        Summary Decision

Pursuant to Commission Rule 67(b), “[a] motion
for summary decision shall be granted only if the entire record, including the
pleadings, depositions, answers to interrogatories, admissions, and affidavits,
shows: (1) [t]hat there is no genuine issue as to any material fact; and (2)
[t]hat the moving party is entitled to summary decision as a matter of law.” 29
C.F.R.      § 2700.67(b). When considering a motion for summary decision, the
court looks at the record “‘in the light most favorable to . . . the party
opposing the motion,’ and . . . ‘the inferences to be drawn from the underlying
facts contained in [the] materials [supporting the motion] must be viewed in
the light most favorable to the party opposing the motion.’” Hanson Aggregates
New York, Inc. 29 FMSHRC 4, 9 (Jan. 2007) (quoting Poller v. Columbia
Broadcasting Sys., Inc., 368 U.S. 464, 473 (1962) and United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962)).

Based on the facts represented by the parties, I
find that there is no genuine issue as to any material fact. For the reasons
set forth below, I conclude that the Secretary is entitled to summary decision
as a matter of law on the issue of whether JRC violated both mandatory safety
standards. Accordingly, I AFFIRM the citations, as issued, and assess
penalties against JRC.

A.   
Factual Background

The Richards Pit is an intermittent
sand and gravel mine in Seeley Lake, Montana, owned and operated by JRC, which
employs two to three employees. Exs. P-1 at 1, P-7 at 1-2. John Richards is the
owner of JRC. Answer to Pen. Pet. at 1. On July 29, 2014, MSHA Inspector David
Small conducted a regular inspection of the Richards Pit while the portable
crushing plant was not operating, and subsequently issued two citations to JRC.
Sec’y Br. at 2; Ex. P-1 at 1-2.

The Secretary
contends that no material facts are at issue, and that he is entitled to
summary decision as a matter of law. Sec’y Br. at 2. On the contrary, JRC
argues that material facts are in dispute. Resp’t Br. at 2. Looking at the
record in the light most favorable to JRC, however, I conclude that there are
no material facts in dispute.

B. Material Facts

1. Citation
   No. 8762878

It is uncontested that during
Small’s July 29, 2014 inspection of the fire extinguishers at the Richards Pit,
Richards was unable to produce records that the cited fire extinguishers had
received an annual inspection. Ex. P-1 at 2. According to Small, Richards
stated that he was unaware that he needed to conduct yearly inspections of the
fire extinguishers, and asked Small for additional time to conduct the
inspections. Exs. P-1 at 2, P-4 at 1. In order to have the citation terminated,
JRC produced an invoice indicating that Missoula Fire Equipment had performed
the inspections of the cited fire extinguishers on August 6, 2014. Exs. P-3,
P-5. The Secretary infers from these facts that annual inspections had not been
performed. Sec’y Br. at 5.

Through conference calls and
subsequent submissions, Richards has represented that fire extinguisher
inspections had been performed and were current at the time of Small’s
inspection. Resp’t Br. at 2; Exs. R-1, R-2. This dispute is immaterial,
however, because its resolution does not affect “the outcome of the suit under
governing law.” Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). The
issue before me is not whether the annual inspections had been performed, but
whether, at the time of inspection, the operator was able to demonstrate to the
inspector compliance with the standard by producing adequate documentation of
timely inspections.

2. Citation No. 8762879

While inspecting the portable
crusher plant at the Richards Pit, Small observed a missing 23-inch section of
handrail associated with an elevated walkway that was nine feet above ground
level. Exs. P-1 at 2, P-6. According to Small, Richards stated that one of his
employees had removed the handrail a week prior to the inspection. Ex. P-1 at 2.
It is undisputed that the cited section of handrail was missing at the time of
inspection, that the missing section was readily observable, that the crusher
plant had not operated in 2014, and that there was no barricade or signage warning
of the alleged hazard. Exs. P-1 at 2, P-7 at 14. JRC argues, however, that the
section was in the midst of repairs. Resp’t Br. at 1. The Secretary disagrees,
contesting that JRC was “actively performing maintenance” on the handrail
section. Sec’y Br. at 6.

Resolution of whether the handrail
on the portable crusher was in a maintenance mode is not material to the fact
of violation, given that JRC had not reported to MSHA that the plant had been
shut down, and even though the plant was not operating, the elevated walkway
was openly accessible, without benefit of any safety precautions addressing the
unprotected area. 

C.   
Discussion and Analysis

In order to establish a violation
of one of his mandatory standards, the Secretary must prove that the violation
occurred “by a preponderance of the credible evidence.” Keystone Coal Mining
Corp., 17 FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek Pocahontas
Co.,   11 FMSHRC 2148, 2152 (Nov. 1989).

1.   Citation
No. 8762878

a.     
Fact of Violation

Small issued 104(a) Citation No.
8762878, alleging a violation of section 56.4201(a)(2) that was “unlikely” to
cause an injury resulting in “lost workdays or restricted duty,” affecting “one
person,” and was caused by JRC’s “low” negligence.[1] The “Condition or
Practice” is described as follows:

The yearly
inspection of the fire extinguishers were not conducted at the mine site. At
least once every 12 months checks shall be conducted to determine the condition
of the extinguishing agent, mechanical parts, hose, nozzle, and vessel to
determine that the extinguisher will function properly. Based on continued
mining operations a person could be injured if a fire were to occur and a fire
extinguisher did not function properly.

Ex. P-2. The citation was terminated on August 13, 2014,
based upon production of an invoice documenting that Missoula Fire Equipment
had checked the fire extinguishers on August 6, 2014. Exs. P-3, P-5.

The Secretary contends that JRC’s failure to
provide Small with current annual inspection records of the fire extinguishers
during the inspection violated section 56.4201(a)(2). Sec’y   Br. at 5. Regarding
this contention, Small asserts that he was presented with no documentation that
the inspections had been performed, although the fire extinguishers appeared to
be in good condition. Exs. P-1 at 2, P-4. On the other hand, JRC argues that
the annual fire extinguisher inspections had, indeed, been performed by
employee Mark Smith. Resp’t Br. at 1; Exs. R-1,  R-2; Ex. P-7 at 14.

Section 56.4201(a)(2) requires, at
least, annual maintenance checks of fire extinguishers to ensure that they are
operational. As noted earlier, this standard is only enforceable if the
operator demonstrates to the inspector, through records or tags, that the fire
extinguishers have been properly inspected. Constr. Materials Corp., 23
FMSHRC 321, 323 (Mar. 2001) (ALJ); see North Idaho Drilling, Inc., 35
FMSHRC 2472, 2489-90 (Aug. 2013) (ALJ) (outdated tags affixed to extinguisher
established violation); Carder, Inc., 27 FMSHRC 839, 853-54 (Nov. 2005)
(ALJ) (“last proof” of an inspection established violation); Hollow
Contracting, Inc.,   18 FMSHRC 2044, 2059 (Nov. 1996) (ALJ) (finding a
section 56.4201(b) violation where the fire extinguishers lacked inspection
documentation).

In this case, even when viewing the
evidence in the light most favorable to JRC, i.e, drawing an inference that JRC
had timely inspected the fire extinguishers prior to Small’s inspection, it is
undisputed that JRC failed to provide Small with documentation that the
inspections had been performed. Therefore, I find that the Secretary has
established a violation of section 56.4201(a)(2).

b.     
Gravity and Negligence

The record establishes that the Richards Pit
operated only intermittently, employing two to three miners, that the portable
crusher had not been operated in 2014, and that the fire extinguishers appeared
to be in good condition. Therefore, I find that the violation was unlikely to
result in injuries causing lost work days or restricted duty and, viewing the
evidence in the light most favorable to the operator - - that the inspections
actually had been timely performed, but that the documentation was unavailable
for whatever reason - - that JRC’s negligence was low in committing the
violation, as alleged by the Secretary.

2. Citation
   No. 8762879

a.     
Fact of Violation

Small issued 104(a) Citation No. 8762879,
alleging a violation of section 56.11002 that was “unlikely” to cause an injury
resulting in “lost workdays or restricted duty,” affecting “one person,” and
was caused by JRC’s “moderate” negligence.[2]
The “Condition or Practice” is described as follows:

A section of the top handrail was
missing located on the elevated walkway on the impact crusher for the crusher
plant for road rock material. The section missing is approximately 23 inches
long, 42 inches above the walkway floor and nine feet above ground level. Based
on continuing mining operations a person could be injured if they were to fall
from that height.

Ex. P-6. The citation was terminated on July 29, 2014 when a
handrail was welded in place.

The Secretary contends that section
56.11002 requires JRC to maintain the elevated walkway in good condition, with
handrails, since the walkway is accessible to miners. Sec’y  Br. at 6. JRC
argues that the handrail was removed because it was loose, that the section was
in the midst of repairs, and that the crusher would not have been operated
without a pre-shift inspection that would have noted, and required repair of,
the missing section. Resp’t Br. at 1.

It is uncontested that the portable
crusher had not been operated in 2014 and that, viewing the evidence in the
light most favorable to JRC, the handrail was being repaired. Considering the
evidence that the walkway was elevated nine feet above ground level, and was
missing a  23-inch section of handrail, without barricade or warning signage to
prevent access, it is clear that any miner accessing the walkway would be
exposed to a fall hazard, even from something as simple as a distraction, a
misstep, or a momentary loss of balance.

I find JRC’s arguments
unpersuasive. Section 56.11002 does not condition a finding of violation upon
any consideration of “pending repairs,” or an operator’s speculation that it
would have cured a defect prior to operating machinery sometime in the future. See
Cactus Canyon Quarries of Texas, Inc., 23 FMSHRC 280, 290 (Mar. 2001) (ALJ)
(finding an S&S violation of section 56.11002 where a fall of three to four
feet was likely); Alsea Quarries, 33 FMSHRC 1840, 1843 n.3, 1845 (Aug.
2011) (ALJ) (finding a section 56.11002 violation in spite of evidence that the
crusher was under repair); Asphalt, Inc., 15 FMSHRC 2206, 2208 (Oct.
1993) (ALJ) (upholding a section 56.11002 violation even though the mine was in
the midst of repairs during inspection). Therefore, I find that the Secretary
has established a violation of section 56.11002.

b.     
Gravity and Negligence

It is uncontested that a miner
would be exposed to injuries such as broken bones as a result of a nine-foot
fall, and that the risk of injury was unlikely because only the handrail was
being repaired, rather than the plant being operated. It is also clear from the
record that the violation had existed for one week, and that Richards had
knowledge of the condition because the missing railing was readily observable.
Therefore, I find, as alleged by the Secretary, that JRC was moderately
negligent in the violating the standard.

D.   
Penalty

The judge
must independently determine the appropriate assessment by proper consideration
of the six penalty criteria set forth in section 110(i) of the Act, 30 U.S.C. §
820(i). See Sellersburg Co., 5 FMSHRC 287, 291-92 (Mar. 1983), aff’d
736 F.2d 1147 (7th Cir. 1984).

Applying the
penalty criteria, and based upon a review of MSHA’s online records, I find that
JRC is a small, intermittent operator, with no prior violations of section
56.11002 or section 56.4201(a)(2) during the relevant time period, and an
overall violation history that is not an aggravating factor in assessing
appropriate penalties. I also find that JRC demonstrated good faith in
achieving rapid compliance after notice of the violations. Since JRC has not
put forth any evidence that imposition of the proposed penalties would
adversely affect its ability to remain in business, “it is presumed that no
such adverse [e]ffect would occur.” Sellersburg,    5 FMSHRC at 294
(citing Buffalo Mining Co., 2 IBMA 226, 247-48 (Sept. 1973)).

The remaining
criteria involve consideration of the gravity of the violations and JRC’s
negligence in committing them. These factors have been discussed fully,
respecting each violation. Therefore, considering my findings as to the six
penalty criteria, the penalties are set forth below.

1.     
Citation No. 8762878

It has been
established that this violation of section 56.4201(a)(2) was unlikely to cause
an injury that could reasonably be expected to result in lost workdays or
restricted duty, that JRC’s negligence was low, and that it was timely abated. Therefore,
I find that a penalty of $100.00, as proposed by the Secretary, is appropriate.

2. Citation
   No. 8762879

It has been
established that this violation of section 56.11002 was unlikely to cause an
injury that could reasonably be expected to result in lost workdays or
restricted duty, that JRC’s negligence was moderate, and that it was timely
abated. Therefore, I find that a penalty of $100.00, as proposed by the
Secretary, is appropriate.

ORDER

WHEREFORE, the Secretary’s Motion for
Summary Decision is GRANTED; Respondent’s Motions for Recusal and
Reconsideration of Order Granting Secretary’s Motion for Simplified Proceedings
and Order Denying Transcript Request are DENIED; and John Richards
Construction is ORDERED TO PAY a total civil penalty of $200.00 within
30 days of this Decision.[3]

/s/ Jacqueline
R. Bulluck

Jacqueline
R. Bulluck

Administrative
Law Judge

202-434-9987

Distribution:

Timothy J. Turner, Esq., U.S.
Department of Labor, Office of the Solicitor, 1244 Speer Boulevard, Suite 515,
Denver, CO 80204

John Richards, John Richards
Construction, 2824 Highway 83 North, P.O. Box 316, Seeley Lake, MT 59868

/tcp

[1] 30 C.F.R. § 56.4201(a)(2) provides that “[f]irefighting
equipment shall be inspected according to the following schedules: [a]t least
once every twelve months, maintenance checks shall be made of mechanical parts,
the amount and condition of extinguishing agent and expellant, and the
condition of the hose, nozzle, and vessel to determine that the fire
extinguishers will operate effectively.”

[2] 30 C.F.R. § 56.11002 provides that “[c]rossovers,
elevated walkways, elevated ramps, and stairways shall be of substantial
construction provided with handrails, and maintained in good condition. Where
necessary, toeboards shall be provided.”

[3]
Payment should be sent to: Mine Safety and
Health Administration, U.S. Department of Labor, Payment Office, P.O. Box
790390, St. Louis, MO 63179-0390. Please include Docket number and A.C. number.