Wallace Brothers, Inc.

Plain-English summary

Wallace Brothers was cited for two unguarded moving-machine-part violations at a portable crusher and was given two days to correct them. When the inspector returned 26 days later, the violations had not been abated and the company had no sufficient explanation. Judge Arthur J. Amchan affirmed the citations and related section 104(b) orders and assessed $1,300 for each, for $2,600 total. The judge explained that failure to abate after a citation warrants a substantially higher penalty than the underlying violation.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 56.14107(a)
• Outcome: Both citations and section 104(b) orders were affirmed, with $2,600 total penalties.
• Key point: A substantial penalty may be appropriate for each day an operator fails, without sufficient excuse, to correct a cited violation after the abatement period expires.

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

                        August 9, 1995

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

Appearances: Jay A. Williamson, Esq., Office of the Solicitor,
U.S. Department of Labor, Seattle, Washington, for
Petitioner;
James A. Nelson, Esq., Toledo, Washington, for

Before: Judge Amchan

                     Factual Background

 On May 11, 1994, MSHA representative Rodney Ingram issued

two non-significant and substantial 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 was unguarded
(Tr. 22-28).

 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).

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

worksite. 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
within the period set forth in the original citations (Tr. 4-5).
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.

                             2

 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 each
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
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 this case.

 I arrive at this figure by starting with the $50 single-

penalty assessment that MSHA would most likely have proposed
under section 30 C.F.R. '100.4. I conclude that this is an
appropriate penalty for the initial citations in this case
considering the criteria in section 110(i) of the Act. However,
I multiply this penalty by 26 days to account for Respondent's
failure to abate within in the time specified in the citations3.

 3
  I note that 30 C.F.R. '100.3(f) suggests that the only

consequence of an operator's timely failure to abate may be
the addition of 10 penalty points in computing the proposed
civil penalty. This suggestion, in some situations, may lead
to a result that is entirely inconsistent with the statutory
scheme of the Federal Mine Safety and Health Act. For example,
adding 10 points to a 30 point violation under MSHA's penalty
conversion table results in a penalty of $270, rather than $135.

                            4

This strikes the undersigned as inconsistent with section
110(b), which contemplates penalizing the operator for each day
that it fails, without sufficient excuse, to correct a violation
after the abatement period has expired.

                            5

                          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.

 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)

/lh

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