Wallace Brothers, Inc.

Plain-English summary

Wallace Brothers operated a portable crusher where inspectors found gaps and missing guarding around a tail pulley and a v-belt drive. The company did not correct the violations by the deadline, and the judge issued section 104(b) withdrawal orders. On remand, Judge Arthur J. Amchan found that the failure to abate warranted penalties of $1,300 for each order, considering the company's high negligence and lack of good faith in correcting the conditions. The two citations and withdrawal orders were affirmed, and the total penalty was $2,600.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 56.14107(a); 30 U.S.C. § 820(b)
• Outcome: Two citations and two section 104(b) withdrawal orders were affirmed, with $1,300 assessed for each order.
• Key point: Failure to timely abate a cited hazard can support a substantially higher daily penalty than the original citation.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                  OFFICE OF ADMINISTRATIVE LAW JUDGES
                          2 SKYLINE, 10th FLOOR
                            5203 LEESBURG PIKE
                      FALLS CHURCH, VIRGINIA 22041

                        April 12, 1996

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 94-710-M
Petitioner : A.C. No. 45-03085-05512
v. :
: Wallace Portable Crusher #1
WALLACE BROTHERS, INC., :
Respondent :

                      DECISION ON REMAND

Before: Judge Amchan

                      Commission Remand

 On August 9, 1995, I assessed civil penalties of $1,300 each

for Respondent=s failure to timely abate two non-significant and
substantial (S&S) violations. One involved the guarding of a
self-cleaning tail pulley and the other the guarding of a v-belt
drive. I calculated the penalty by multiplying a $50 penalty for
the original citations by the 26 days that Respondent failed to
abate within the time specified in the citations. I concluded
that this was an appropriate penalty considering the criteria set
forth in section 110(i) of the Act, 17 FMSHRC 1380, 1383.

 On April 2, 1996, the Commission remanded this case to me

with instructions to (re)consider the section 110(i) criteria and
make findings of fact with respect to each of them.

                      Findings of Facts

 On May 11, 1994, MSHA representative Rodney Ingram issued

two non-S&S citations to Respondent alleging violations of
30 C.F.R. '56.14107(a), which requires the guarding of moving
machine parts. Citation No. 4129345 alleged that the standard
was violated in that a 5-inch x 8-inch gap existed in the guard
of the self-cleaning tail pulley on Respondent's portable crusher
(Tr. 15-20). Citation No. 4129346 alleged that the back side
of a v-belt drive on the same crusher was unguarded(Tr. 22-28,
Exhs. R1-R5).
Ingram asked Respondent's foreman, Dan Fisher, if two days
would be sufficient to abate these violations. Fisher indicated
that it would be sufficient. The inspector therefore set May 13,
1994, as the date by which abatement or termination of the
violations was required (Tr. 20, 28).

Page 2

 On June 8, 1994, Ingram returned to the Respondent's work-

site. Four citations issued the month before had not been timely
abated. With regard to two citations, Ingram extended the
abatement or termination date. For one, an electrical grounding
violation, Ingram accepted Respondent's explanation that it had
contacted an electrician, but that the electrician had not been
able to come out to the crusher (Tr. 37). Ingram also extended
the abatement period for a citation issued for a supervisor's
lack of first-aid training. He accepted Fisher's representation
that he was having trouble scheduling the class (Tr. 42).

 Fisher told Inspector Ingram that he forgot about the

guarding citations (Tr. 38-40). Ingram issued Respondent
two section 104(b) withdrawal orders (Nos. 4129356 and 4129357)
for its failure to timely correct these violations. When Ingram
returned to the crusher on June 9, these violations were abated
(Tr. 43-47). MSHA subsequently proposed a $1,500 civil penalty
for each of the citations/section 104(b) orders1.

     A   civil penalty of $1,300 is assessed for each
           of the citations/section 104(b) orders

 Respondent does not contest that the standards were violated

on May 11, 1994, nor that these violations were not corrected
Rather, it contends that the proposed civil penalties are too
high, considering the penalty criteria in the Act and MSHA's
regulations regarding penalty calculations at 30 C.F.R. Part 100.

 1
  Although the proposed penalty assessment lists only the

numbers of the section 104(a) citations, the document and
attached narrative clearly indicate that the penalties are
for the section 104(b) orders as well. Any confusion in this
regard was eliminated by the Secretary's May 5, 1995 prehearing
exchange.

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Page 3

 Wallace Brothers points to the fact that it purchased the

crusher on which the two violations occurred in 1966 (Tr. 84).
The crusher had been inspected by MSHA many times prior to May
1994, and none of the inspectors had previously indicated that
the inside of the v-belt drive needed to be guarded. Respondent
does not know how long the gap in the tail pulley guard existed
prior to the citation (Tr. 84-85).

 Utilizing MSHA's regulations for proposing civil penalties,

Respondent argues that penalties of $210 and $159 should be
assessed, rather than those proposed by the Secretary. However,
in a contested civil penalty assessment case, the Commission is
not bound by MSHA's penalty assessment regulations or practices.
The Commission assesses penalties de novo by applying the
statutory criteria set forth in section 110(i) of the Act to the
evidence of record, Sellersburg Stone Company, 5 FMSHRC 287, 292
(March 1983).

 Moreover, an operator's failure to timely correct a citation

warrants a substantially greater penalty than the citation
itself. This is reflected in section 110(b) of the Act, which
authorizes the Secretary to propose and the Commission to assess
a penalty of up to $5,000 a day for each day during which failure
to correct a violation continues2.

 The daily penalty for failure to abate orders provides a

powerful disincentive for ignoring the abatement requirement
of a citation or order. An unabated violation constitutes a
potential threat to the health and safety of miners, Legislative
History of the Mine Safety and Health Act of 1977, at page 618.

 It is one thing to overlook an MSHA violation before a

citation or order is issued and another to ignore it after a
citation has been issued. Given the number of inspectors, the
Act relies, to a great extent, on the mine operator to discover
and correct safety and health hazards and to timely correct cited
violations. Particularly, in instances in which abatement is
not required immediately, it is critical that the operator abate
within the reasonable time period set forth in the citation.
This is so because the inspector is unlikely to be present on

 2
  The maximum daily penalty for a section 104(b) violation

was increased from $1,000 to $5,000 by Public Law 101-508,
Title III, '3102,(November 1990).

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the day on which abatement is required.

 Upon discovering a failure to abate, an inspector must

apply a rule of reason in determining whether to issue a section
104(b) order or to extend the abatement date, Martinka Coal Co.,
15 FMSHRC 2452 (December 1993). In the instant case, Inspector
Ingram gave Respondent the benefit of any reasonable doubt by
extending the abatement period for two citations. He accepted
at face value the excuses of Respondent's foreman. It certainly
was reasonable for him not to extend the abatement period for the
other two citations for which Respondent had no excuse.

 To assess a civil penalty of the magnitude suggested by

Respondent is to invite dilatory conduct by some operators in
timely abating citations and orders. A daily penalty, on the
other hand, serves as a warning that such conduct will not be
tolerated either by MSHA or the Commission. I therefore assess
a $1,300 penalty for each of the guarding citations/section
104(b) orders in accordance with the following factual findings
regarding the section 110(i) criteria:

 Operator=s history of previous violations: The record

indicates that Respondent had not been cited for any violations
within the 24 months prior to the instant citations. It
apparently had received MSHA citations prior to this. I conclude
that Respondent=s prior history provides no reason to assess a
penalty either higher or lower than should otherwise be assessed
given the other statutory criteria.

 The appropriateness of the penalty to the size of the

business of the operator charged: Respondent is a small mine
operator, which worked slightly more than 10,000 hours in 1993.
This factor leads me to assess a smaller penalty than I would
if Respondent was a much larger operator.

 The Respondent=s negligence: Inspector Ingram deemed

Respondent to be moderately negligent with regard to the original
violations. He concluded that they should have been detected by
Respondent during Wallace=s daily workplace exam.

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Page 5

 I credit the testimony of Respondent=s President that his

crusher had been inspected prior to June 1994 and that none of
the MSHA inspectors who looked at the crusher before Inspector
Ingram had suggested the inside of the v-belt had to be guarded
(Tr. 84) The self-cleaning tail pulley had been provided with
a guard as the result of an inspection several years prior to
June 1994 (Tr. 86). Respondent=s President did not know how long
the gap in the guard cited by inspector Ingram had been present
(Tr. 85).

      I would characterize Respondent=s negligence with

regard to the initial citations as low to moderate. Wallace=s
negligence with regard to the initial citations would warrant a
relatively low civil penalty assuming other penalty criteria
would not warrant a higher penalty. On the other hand,
Respondent=s negligence with regard to the failure to abate
orders is very high and warrants a much higher penalty than the
initial citations.

 The demonstrated good faith of the person charged in

attempting to achieve rapid compliance after notification of
the violation.

 On May 11, 1994 two citations were issued to Respondent with

a termination date of May 13, 1994. When inspector Ingram saw
the crusher again on June 8, 1994, these violations had not been
corrected.

 Foreman Dan Fisher=s explanation that he forgot about the

violations demonstrates a lack of good faith in attempting to
achieve compliance with the Act. Mr. Fisher was a supervisory
employee, therefore his acts and omissions are imputable to
Respondent for purposes of assessing a civil penalty, Southern
Ohio Coal Co., 4 FMSHRC 1459, 1464 (August 1982).

 The manner in which Respondent=s lack of good faith in

timely abating the original citations should be addressed in
assessing penalties is set forth in section 110(b) of the Act.
This section provides for a penalty for each day during which a
violation continues unabated. Therefore, I multiply the penalty
I would have assessed for the original citation by the number of
days that Respondent failed to abate.

 The effect on the operator=s ability to stay in business.

There is no evidence in the record that would indicate that a
penalty of $2,600 for the two failure to abate orders would
compromise Respondent=s ability to continue in business.
Therefore, it is presumed that these penalties would have no such

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effect, Sellersburg Stone Co., 5 FMSHRC 287 at 294 (March 1993).

 The gravity of the violations. Injury from the gap in the

guard on the self-cleaning tail pulley was unlikely because
miners would rarely be near it (Tr. 15-18). However, injury was
possible and could be very serious, possibly resulting in the
loss of a limb (Tr. 18, 72, 82).

 Similarly, it was possible but unlikely that a miner would

be injured due to the lack of guarding of the inside of the
v-belt drive (Tr. 22-27,72, 82). Injuries if they were to occur
were likely to be in the nature of broken fingers and cuts
(Tr. 24).

              The appropriate civil penalty

 Based on consideration of the above-mentioned statutory

criteria, I find that $50 is an appropriate penalty for each
of the original citations in this case. However, taking into
account Respondent=s negligence and lack of good faith in rapidly
abating these violations, I find that a daily penalty of $50 is
appropriate for each day that they remained unabated after the
termination date. Thus, I assess a civil penalty of $1,300 for
each of the section 104(b) orders.

                          ORDER

 Citation No. 4129345 and section 104(b) Order No. 4129356

are affirmed and a $1,300 civil penalty is assessed.

 Citation No. 4129346 and section 104(b) Order No. 4129357

are affirmed and a $1,300 civil penalty is assessed.

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 The $2,600 in assessed civil penalties shall be paid within

30 days of this decision.

                            Arthur J. Amchan
                            Administrative Law Judge

Distribution:

Jay Williamson, Esq., U.S. Department of Labor,
Office of the Solicitor, 1111 Third Ave., Suite 945,
Seattle, WA 98101 (Certified Mail)

James A. Nelson, Esq., 205 Cowlitz, P.O. Box 878,
Toledo, WA 98591 (Certified Mail)

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