Secretary of Labor v. D. Holcomb & Company, LLC

Plain-English summary

An MSHA inspector found a gasoline generator running inside D. Holcomb & Company's scale-house trailer at Black Diamond Quarry, with carbon monoxide above 180 parts per million near the only functioning door. MSHA alleged that the company failed to conduct gas surveys often enough to evaluate its controls, exposed a supervisor and customer to a potentially fatal hazard, and acted with high negligence after a prior similar citation. The parties reached an agreement immediately before the scheduled hearing. Judge David F. Barbour approved a reduction from the listed $52,500 proposed penalty to $30,000, payable in 12 monthly installments of $2,500.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.5002
• Outcome: The citation was settled for $30,000, payable over 12 months.
• Key point: The settlement resolved a serious indoor-generator carbon-monoxide allegation while requiring full payment on a fixed schedule.

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.

D.
HOLCOMB & COMPANY, LLC,

Respondent.

CIVIL
PENALTY PROCEEDING:

Docket
No. WEST 2015-382-M

A.C.
No. 45-03570-371757

Mine:
Black Diamond Quarry

DECISION

Appearances:               Hanah
Harris-Yager, Esq., U.S. Department of Labor, Office of the Solicitor, Denver,
Colorado for Petitioner

Denis
J. Holcomb, D. Holcomb & Company, LLC, Port Angeles, Washington for Respondent

Before:                        Judge
David Barbour

This
proceeding arises under the Federal Mine Safety and Health Act of 1977, as amended,
30 U.S.C. § 801 et seq. It involves one alleged violation of the
Secretary of Labor’s mandatory safety standards for metal/non-metal mines found
at 30 C.F.R. Part 56. The violation allegedly occurred on June 25, 2014, at the
scale house trailer of the Black Diamond Quarry, a construction sand, gravel
and rock quarry owned and operated by D. Holcomb & Company, LLC. According
to the Secretary, on that date an inspector from the Secretary’s Mine Safety
and Health Administration (“MSHA”) entered the trailer and observed a generator
running inside the building near a company supervisor and a customer (a truck
driver). According to the inspector, exhaust from the generator was not being
vented directly outside, and the supervisor was not monitoring the exhaust to
determine the carbon monoxide (“CO”) levels inside the trailer.

The
inspector checked the level and found it was in excess of 180 parts per million
four feet inside the trailer’s only functioning door. The inspector cited the
company for a violation of 30 C.F.R. § 56.5002, a mandatory safety standard
requiring in part that “gas . . . surveys . . . be conducted as frequently as
necessary to determine the adequacy of control measures.” The inspector found
that the violation was highly likely to result in the deaths of the supervisor
and the customer and that the violation was a significant and substantial
contribution to a mine safety hazard. The inspector further found the alleged
violation was the result of the company’s “high” negligence.[1]

After
issuance of the citation, MSHA applied its special assessment procedures and proposed
a civil penalty of $52,000 for the alleged violation. The company contested the
proposal, and the Secretary petitioned the Commission to assess the penalty. The
company answered the Secretary’s assertions by stating the inspector who cited
the company for the prior violation told the company if the windows in the
scale house were kept open the generator could be used inside. The company
asserted all of the windows and the trailer’s only door were open when the
generator was running. The company also asserted that exposure of persons
inside the scale house was limited to two minutes.

After
the answer was received, the Chief Judge assigned the case to the court which
issued a prehearing order requiring the parties to confer to determine if they
could settle the matter. The court also required the parties to exchange
information, and the court set out the rules for discovery. Subsequently, the
parties reported they were unable to agree on a settlement. Upon receiving the
report, the court asked counsel for the Secretary and the representative of the
operator if they would agree to the appointment of a settlement counsel to work
independently of the court to resolve the case short of a hearing. The parties
agreed, and the court appointed an independent settlement counsel. However, to
preclude open-ended discussions, the court also set the case for hearing on
March 29, 2016, in Port Angeles, Washington. The court made clear to the
parties that if the efforts of the settlement counsel failed, the case would be
heard on March 29.

In
mid-March, 2016, the settlement counsel advised the court that his efforts were
not successful. The case then proceeded to hearing and the parties appeared
with documentary evidence and witnesses on the appointed day at the appointed
hour in Port Angeles.[2]

The trial was scheduled to begin at 8:30
a.m., but due to a previously scheduled jury call, the clerk of the court
advised all present that the room in which the case would be heard would not be
available until approximately 9:30 a.m. The delay proved fortuitous. The court
asked counsel and the representative of the company to use the time to make a
final attempt to settle the case, and after a face-to-face discussion and a
telephonic conference with the Solicitor’s Office, counsel and the
representative agreed to a compromise settlement. When the clerk then announced
that the hearing room was available, the court convened the hearing so that
counsel for the Secretary could describe the settlement and move for its
approval. Upon hearing the explanation, the court granted counsel’s motion for
approval. Tr. 12. The court incorporates the explanation and the court’s
approval into the decision by reference.[3]
Tr. 9-12.

THE SETTLEMENT

CITATION
NO. 
DATE      30 C.F.R. §     PROPOSED PENALTY     SETTLEMENT

8780364             
6/25/14        56.5002           $52,500                             $30,000

Under the agreement, the compromise
penalty will be paid in the amount of $2,500 per month for a period of 12
consecutive months. Tr. 11.

ORDER

On June 1, 2016, the company SHALL
PAY the Secretary of Labor the first of 12 consecutive payments each in the
amount of $2,500. The other eleven payments of $2,500 SHALL BE PAID on
the first business day of each succeeding month (to wit: July 1, August 1,
September 1, October 3, November 1 and December 1, 2016 and January 2, February
1, March 1, April 3 and May 1, 2017).[4]
Upon the completion of full payment, this case IS DISMISSED.

/s/ David F.
Barbour

David
F. Barbour

Administrative
Law Judge

Distribution:
(Certified Mail)

Hanah Harris-Yager, Esq., U.S. Department of Labor, Office of the
Solicitor, MSHA Backlog Project, 1244 Speer Boulevard, Suite 216, Denver,
Colorado  80204

Denis J. Holcomb, Owner, D. Holcomb & Co., LLC, 112 Klahanie
View Drive, Port Angeles, Washington   98363

/db

[1] Compounding the company’s
negligence was the fact the company was cited previously for operating a
generator inside the scale house trailer and for not monitoring the gas levels
while doing so.

[2] Shortly before March 29, 2016,
counsel for the Secretary withdrew and a substitute counsel entered her
appearance on the government’s behalf.

[3]
The court again thanks
counsel and the representative for their persistence and their patience with
one another and reiterates its view that the settlement is in the best interest
of all involved. See
TR. 7-12.

[4]  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.