Secretary of Labor v. Kennecott Copper Corporation and M. M. Sundt Construction Company (ALJ decision, May 13, 1981)

Plain-English summary

At Kennecott's Ray mine, the parties resolved eight citations involving Kennecott and construction contractor M. M. Sundt. Kennecott withdrew its contests of four citations, and Sundt accepted responsibility for two others after being joined in the case. MSHA dismissed the remaining two citations because it lacked sufficient evidence. Judge John J. Morris affirmed four citations against Kennecott with $597 in penalties and two against Sundt with $155 in penalties; he vacated the other two. Both companies were ordered to pay within 30 days.

Decision snapshot

• Cited standard(s): The order identifies citation numbers but does not state the underlying safety standards.
• Outcome: Six citations affirmed and two vacated; $597 assessed against Kennecott and $155 against Sundt.
• Key point: Sundt became a respondent on two contractor citations, and its penalties were proposed using its own size and violation history.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) v.KENNECOTT COPPER
DDATE:
19810513
TTEXT:

~1259
Federal Mine Safety and Health Review Commission Office of Administrative Law Judges

SECRETARY OF LABOR
CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATIVE (MSHA)
DOCKET NO. WEST 79-141-M
PETITIONER
v. ASSESSMENT CONTROL NO.
02-00150-05003
KENNECOTT COPPER CORPORATION,
AND
MINE: Kennecott Ray
M. M. SUNDT CONSTRUCTION COMPANY,
RESPONDENTS

DECISION

APPEARANCES:
Mildred R. Wheeler Esq.
Office of the Solicitor
United States Department of Labor
450 Golden Gate Avenue
San Francisco, California 94102, for the petitioner

Patrick Paterson Esq.
1700 First National Bank Plaza
100 West Washington Street
Phoenix, Arizona 85003

Marvin A. Husted
Vice President
M. M. Sundt Construction Company
4101 East Irvington
Tucson, Arizona 85726, for the respondents

Before: Judge John J. Morris

STATEMENT OF THE CASE

In this case the Secretary of Labor on behalf of the Mine Safety and Health Administration (MSHA) seeks an order affirming certain citations and assessing civil penalties. The contest arises under the Federal Mine Safety and Health Act, 30 U.S.C. 801 et seq. (1977).

Pursuant to notice, a hearing was held in Phoenix, Arizona on April 3, 1980. At that time MSHA and Kennecott were the only parties to this action. At the hearing, Kennecott indicated its desire to withdraw its notice of contest of citation nos. 377273, 377270, 377269, and 377268. They admitted the violations occurred and agreed that the penalties proposed were reasonable.

~1260
MSHA moved to dismiss citation nos. 377272 and 377267. In support thereof, the Secretary stated that there was insufficient evidence to prove these alleged violations.

The Secretary and Kennecott submitted a stipulation of facts as to the remaining citation nos. 377265 and 377266. The occurrence of the alleged violations was not disputed. Respondent contested these citations on the ground that the violations were the responsibility of M. M. Sundt Construction Company (Sundt), an independent contractor. Kennecott also argued that if it were held liable for these violations it should not be found to have been negligent because it had no control over the job site where the violations occurred.

Subsequent to this hearing, MSHA adopted regulations establishing a method for citing independent contractors. As a result of these regulations, the Federal Mine Safety and Health Review Commission in Secretary v. Pittsburgh and Midway Coal, BARB 79-307-P et. al. (1980) gave the Secretary the opportunity to decide whether to continue pursuing the existing action against the owner-operator or to proceed against the independent contractor claimed to have violated the standards.

In light of the regulations and the P & M decision, I issued an order directing the parties to state their positions with respect to these recent developments. Kennecott responded by restating its contention that Sundt was solely responsible for the violations. It requested that the citations be vacated. The Secretary chose to continue the proceedings against Kennecott unless Sundt agreed to voluntarily substitute itself as the respondent with respect to the two citations in question.

On November 10, 1980, Kennecott submitted a motion to substitute Sundt for itself with respect to citation nos. 377265 and 377266. Sundt indicated its agreement to this proposal. Sundt stated that it would withdraw the notice of contest as to these citations if the penalties were recomputed to reflect the amount which would have been assessed if the citations had been issued originally to Sundt. Sundt contended that the penalty should be based on its company size and history of violations rather than on Kennecott's.

Sundt was subsequently joined as a party in this case, but only as to citation nos. 377265 and 377266. On May 4, 1981, the Secretary and Sundt filed a motion proposing penalties based on Sundt's size, history of violations and prompt good faith abatement of each violation.

~1261
ORDER

Pursuant to 29 C.F.R. 2700.11 Kennecott's notice of contest as to citations nos. 377273, 377270, 377269 and 377268 is withdrawn. These citations are affirmed. After reviewing the criteria for the assessment of a penalty, I also affirm the proposed penalty for each of these citations set forth below.

Citation No. 377273 $195.00
Citation No. 377270 122.00
Citation No. 377269 150.00
Citation No. 377268 130.00

Kennecott is directed to pay these penalties within 30-days of the date of this order.

Pursuant to 29 C.F.R. 2700.11, MSHA's motion to dismiss citation nos. 377272 and 377267 is granted. These citations and their proposed penalties are vacated.

Further, pursuant to 29 C.F.R. 2700.11, Sundt's notice of contest as to citation nos. 377265 and 377266 is withdrawn. These citations are affirmed. After reviewing the criteria for assessment of a penalty, I also affirm the proposed penalty for each of these citations as set forth below.

Citation No. 377265 $90.00
Citation No. 377266 65.00

Sundt is to pay these penalties within 30 days of the date of this order.

John J. Morris
Administrative Law Judge