B & B Excavating, Inc. (ALJ decision, August 14, 1987)
B & B Excavating, Inc. (FMSHRC WEST 87-20-M, WEST 87-23-M, WEST 87-35-M, WEST 87-36-M, WEST 87-37-M, WEST 87-51-M, WEST 87-91-M, and WEST 87-92-M): Mixed result across eight penalty dockets
Apply this to your situation
This order from 1987 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.
Plain-English summary
B & B Excavating operated the Eaton Pit sand and gravel mine and faced eight consolidated civil penalty dockets involving electrical, equipment, and other safety citations. The parties stipulated to the operator's jurisdiction, abatement efforts, business impact, and other background facts, and the judge granted several motions to withdraw or dismiss citations for lack of evidence. The judge dismissed ten citations and vacated their proposed penalties, affirmed the remaining citations, and assessed a combined civil penalty of $3,466 with 90 days to pay. The decision also records that the operator had timely abated the citations and acted in good faith.
Decision snapshot
- Cited standards: 30 C.F.R. §§ 56.12001, 56.12002, 56.12004, 56.12008, 56.12013, 56.12018, 56.12025, 56.12030, 56.12032, 56.12041, 56.14001, 56.14026, 56.4102, 56.9087; 30 U.S.C. § 801
- Outcome: Ten citations were dismissed and their penalties vacated, while all other citations were affirmed and a total civil penalty of $3,466 was assessed.
- Key point: The judge resolved the consolidated cases by dismissing citations the Secretary withdrew for insufficient evidence and approving the proposed penalties for the remaining violations.
Full text (FMSHRC public release)
CCASE:
SOL (MSHA) V. B EXCAVTING
DDATE:
19870814
TTEXT:
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Federal Mine Safety and Health Review Commission Office of Administrative Law Judges
SECRETARY OF LABOR,
CIVIL PENALTY PROCEEDIN
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket No. WEST 87-20-M
PETITIONER
A.C. No. 05-02140-05504
v. Docket No. WEST 87-23-M
A.C. No. 05-02140-05505
B & B EXCAVATING,
INC.,
Docket No. WEST 87-35-M
RESPONDENT
A.C. No. 05-02140-05506
Docket No. WEST 87-36-M
A.C. No. 05-02140-05507
Docket No. WEST 87-37-M
A.C. No. 05-02140-05508
Docket No. WEST 87-51-M
A.C. No. 05-02140-05509
Docket No. WEST 87-91-M
A.C. No. 05-02140-05510
Docket No. WEST 87-92-M
A.C. No. 05-02140-05511
Eaton Pit
DECISION
Appearances: Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, Denver, Colorado, for Petitioner; Mark C. VanNess, Esq., Jones, Meiklejohn, Kehl & Lyons, Denver, Colorado, for Respondent.
Before: Judge Cetti
STATEMENT OF THE CASE
This consolidated civil penalty proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq., (Mine Act). The Secretary of Labor on behalf of the Mine Safety and Health Administration, charges the operator of Eaton Pit with violations of Title 30 C.F.R. safety regulations.
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Pursuant to Section 110(a) of the Mine Act the Secretary of Labor filed a petition for assessment of civil penalties in each of the above captioned cases. The Respondent made a timely appeal in each of these cases. After proper notice to the parties the matter came on for hearing before me on June 24, 1987.
At the hearing I granted the joint motion of the parties to consolidate the above captioned cases for hearing.
STIPULATIONS IN ALL CASES
At the hearing the parties stipulated as follows:
1. The Respondent, B & B Excavating, Inc., is engaged in the mining and selling of sand and gravel in the United States and its operations affect interstate commerce.
2. B & B Excavating, Inc. is the owner and operator of the Eaton Pit mine.
3. B & B Excavating, is a sand and gravel operator, producing 120,000 tons per year. It has about 100 employees of which approximately 9 to 12 work in the Eaton Pit area on a seasonal basis.
4. B & B Excavating, Inc. is subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq.
5. The administrative law judge has jurisdiction in this matter.
6. All the citations in each docket were properly served by a duly authorized representative of the Secretary upon an agent of B & B Excavating, Inc. on the date and place stated in the citation, and are to be admitted into evidence for the purpose of establishing the issuance of those citations.
7. The proposed penalties will not affect the Respondent's ability to continue in business.
8. The operator has demonstrated good faith in abating all citations.
9. Respondent's history of previous violations is shown in the computer printout received in evidence which lists the violations for which citations were issued at Respondent's Eaton Pit for the 2Äyear period terminating on July 8, 1986.
Docket No. 87Ä23ÄM
Citation No. 2634597
Citation No. 2634597 charges a non-significant and substantial violation of 30 C.F.R. 56.12008 which requires adequate insulation and proper fittings for power wires and
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cables.
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The citation alleges that 10/4 Type 50 power cable entering the motor terminal box for the "Seco" screen drive motor was not provided with a cable entrance fitting. The cable supplied 480 VAC. 3 phase power to the motor and no cable damage was observed at the box.
The violation was abated in a timely manner and the citation terminated when the 10/4 50 cable entering the "Seco" screen motor terminal box was provided with a fitting.
At the hearing Respondent moved to withdraw its notice of contest. The motion was granted.
The parties stipulated that the Secretary's proposed $20 civil penalty was the appropriate penalty and agreed Respondent should be allowed 90 days to pay the penalty.
Citation No. 2634507
Citation No. 2634507 alleges a non-significant and substantial violation of 30 C.F.R. 56.12008 in that certain cables were not properly installed where they passed into electrical compartments.
The Respondent showed good faith in abating the violation in a timely manner. The citation was terminated.
At the hearing the Respondent moved to withdraw its notice of contest. The motion was granted.
The parties stipulated that the Secretary's proposed $20 penalty was the appropriate civil penalty and that Respondent be allowed 90 days to pay the penalty.
Citation No. 2634598
Citation No. 2634598 alleges a non-significant and substantial violation of 30 C.F.R. 56.12008 in that specified cables entering and exiting electrical enclosures were not properly installed in their respective entrance and exit fittings.
At the hearing the Secretary moved without objection to dismiss the citation for lack of evidence. The motion was granted. The Secretary stated on the record that the basis for the motion was that preparation for hearing has shown that the Secretary has insufficient evidence to support the alleged violation.
Docket No. 87Ä20ÄM
This docket consists of thirteen citations. Each citation number, the safety standard allegedly violated, and the proposed penalty are as follows:
Citation/Order 30 C.F.R. Proposed Penalty
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2634461 56.12041 $ 42.00
2634461 56.12041 $ 42.00
2634478 56.12001 42.00
2634478 56.12001 42.00
2634479 56.12001 42.00
2634487 56.12002 20.00
2634595 56.12008 42.00
2634596 56.12004 50.00
2634599 56.12008 42.00
2634641 56.14001 42.00
2634644 56.12032 42.00
2634462 56.12008 42.00
2634470 56.14026 74.00
2634471 56.12030 85.00
2634473 56.12025 42.00
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The Secretary moved to withdraw Citation Nos. 2634461, 2634641, 2634644 and 2634470 for lack of sufficient evidence. The motion was granted.
Respondent then moved to withdraw its notice of contest with regard to the other citations in this docket. The motion was granted. The parties agreed with respect to those citations that the appropriate penalty for each was the penalty proposed by the Secretary and that respondent should be allowed 90 days to pay the penalties.
Docket No. 87Ä35ÄM
This docket consists of 20 citations. Ten of the citations allege a violation of the safety standard 30 C.F.R. 56.12001 which requires circuits to be protected against excessive overload by fuses or circuit breakers of the correct type and capacity. Eight of the citations allege a violation of 30 C.F.R 12002 which regulates control of switches used on electrical equipment. Two of the citations allege a violation of 56.12004 which regulates the size of current capacity of electrical conductors to ensure that a rise in temperature resulting from normal operation will not damage the insulating material.
The citation number, the standard allegedly violated, and the Secretary's proposed penalty are as follows:
Citation/Order 30 C.F.R. Proposed Penalty
2634463 56.12001 $ 50.00
2634464 56.12002 50.00
2634465 56.12002 50.00
2634466 56.12002 20.00
2634467 56.12002 50.00
2634468 56.12002 50.00
2634469 56.12004 50.00
2634475 56.12001 50.00
2634476 56.12001 50.00
2634477 56.12001 50.00
2634480 56.12001 50.00
2634481 56.12001 50.00
2634482 56.12001 50.00
2634483 56.12001 50.00
2634484 56.12001 50.00
2634485 56.12001 50.00
2634486 56.12002 20.00
2634488 56.12002 20.00
2634600 56.12004 50.00
2634643 56.4102 50.00
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Respondent moved to withdraw its notice of contest with respect to all 20 citations. The motion was granted. The parties agreed that the Secretary's proposed penalty for each violation is the appropriate penalty and that respondent should have 90 days to pay the civil penalties.
Docket No. WEST 87Ä36ÄM
This docket consists of 20 citations. Each citation number, safety standard allegedly violated, and the Secretary's proposed penalty are as follows:
Citation/Order 30 C.F.R. Proposed Penalty
2634646 56.12013 $ 50.00
2634647 56.12018 50.00
2634472 56.12041 20.00
2634474 56.12001 85.00
2634648 56.9087 68.00
2634489 56.12041 20.00
2634490 56.12041 50.00
2634491 56.12041 20.00
2634492 56.12041 50.00
2634493 56.12001 50.00
2634494 56.12041 50.00
2634495 56.12002 20.00
2634496 56.12002 50.00
2634497 56.12002 20.00
2634499 56.12002 50.00
2634500 56.12002 20.00
2634502 56.12001 20.00
2634505 56.12001 50.00
2634842 56.12001 50.00
2634843 56.12001 50.00
The Secretary moved to dismiss Citation No. 2634647 for lack of sufficient evidence. The motion was granted. The respondent then moved to withdraw its notice of contest with respect to the remaining citations in this docket. The motion was granted.
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The parties stipulated that the Secretary's proposed penalties were the appropriate penalties for the violations and that respondent should have 90 days to pay these civil penalties. Docket No. WEST 87Ä37ÄM
This docket consists of 10 citations. Each citation number, standard allegedly violated and the Secretary's proposed penalty are as follows:
Citation/Order 30 C.F.R. Proposed Penalty
2634844 56.12001 $ 50.00
2634845 56.12001 50.00
2634846 56.12001 50.00
2634847 56.12001 50.00
2634848 56.12001 50.00
2634849 56.12001 50.00
2634850 56.12001 50.00
2634852 56.12001 50.00
2634854 56.12008 20.00
2634857 56.14001 68.00
Respondent moved to withdraw its notice of contest with respect to all citations in this docket. The motion was granted. The parties agreed that the Secretary's proposed penalty for each violation was the appropriate penalty and that respondent should have 90 days to pay these civil penalties.
Docket No. WEST 87Ä51ÄM
This docket consists of citation number 02634498 issued on July 22, 1986 alleging a violation of 30 C.F.R. 56.12002 for lack of individual motor running overload control protection on specified equipment. Respondent's motion to withdraw its notice of contest was granted. The parties agreed that the Secretary's proposed penalty for each violation was the appropriate penalty and that respondent should be allowed 90 days to pay the civil penalties.
Docket No. WEST 87Ä91ÄM
This docket consists of 20 citations. Each citation number standard allegedly violated, and the Secretary's proposed penalty are as follows:
Citation/Order 30 C.F.R. Proposed Penalty
2634649 56.11002 $ 50.00
2634501 56.12001 50.00
2634503 56.12041 50.00
2634504 56.12001 20.00
2634506 56.12025 50.00
2634841 56.12008 20.00
2634853 56.12032 50.00
2634856 56.12030 50.00
2634508 56.12002 85.00
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2634510 56.12013 50.00
2634511 56.12001 50.00
2634512 56.12001 50.00
2634513 56.12001 33.00
2634514 56.12001 50.00
2634515 56.12001 50.00
2634516 56.12001 50.00
2634517 56.12001 50.00
2634518 56.12002 20.00
2634519 56.12002 20.00
2634520 56.12002 20.00
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The Secretary of Labor moved to withdraw Citation Nos. 2634649, 2634853 and 2634511 for lack of evidence. The motion was granted. The respondent then moved to withdraw its notice of contest with respect to the remaining citations. The motion was granted. The parties agreed that the penalties proposed by the Secretary of Labor are the appropriate penalties for the violations and that respondent should have 90 days to pay said civil penalties. Docket WEST 87Ä92ÄM
This docket consists of the four citations listed below with the citation number, standard allegedly violated and the
Secretary's proposed penalty as follows:
Citation/Order 30 C.F.R. Proposed Penalty
2634684 56.12001 $50.00
2634858 56.12008 20.00
2634859 56.12018 50.00
2634860 56.12013 50.00
The Secretary of Labor moved to withdraw Citation No.
2634859 on the basis of insufficient evidence. The motion was granted. Respondent then moved to withdraw its contest with respect to the four remaining citations within this docket. The motion was granted. The parties agreed that the Secretary's proposed civil penalties are the appropriate penalties for each of the violations and agreed that respondent should have 90 days to pay said civil penalties.
FINDINGS AND CONCLUSIONS OF LAW
Based upon the pleadings, stipulations, and the information placed upon the record at the hearing, I enter the following findings and conclusions of law:
1. The Respondent, B & B Excavating, Inc., is engaged in the mining and selling of sand and gravel in the United States and its operations affect interstate commerce.
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2. B & B Excavating, Inc. is the owner and operator of the Eaton Pit Mine.
3. Respondent has about 100 employees of which approximately 9 to 12 work in the Eaton Pit area on a seasonal basis.
4. B & B Excavating, Inc. is subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq.
5. As the Administrative Law Judge assigned by the Federal Mine Safety and Health Review Commission to hear this case, I have jurisdiction to hear and decide this case.
6. Respondent's history of previous violations is shown in the computer printout which lists the violations for which citations were issued at Respondent's Eaton Pit for the 2Äyear period terminating on July 8, 1986.
7. The penalties assessed will not affect Respondent's ability to continue in business.
8. The operator has timely abated each of the citations and has demonstrated good faith in doing so.
9. Each citations, except those listed below as dismissed, is affirmed and its related proposed civil penalty is assessed as the appropriate penalty for each of the violations.
ORDER
1. Each of the citations listed below is dismissed and its related proposed penalty vacated: Citation Nos. 2634598, 2634461, 2634641, 2634644, 2634470, 2634647, 2634649, 2634853, 2634511, and 2634859.
2. All other citations are affirmed and in satisfaction of these citations IT IS ORDERED that Respondent shall within 90 days from the date of this decision pay a civil penalty in the sum of $3,466 for the violations found herein.
August F. Cetti
Administrative Law Judge
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