Secretary of Labor v. Remington, LLC

Plain-English summary

The Secretary proposed reducing $8,325 in penalties to $4,163 for two citations involving a loaded coal truck that rolled backward and overturned, causing a lost-time injury to its driver. The post-accident investigation found six of ten brakes inoperable and a disconnected seat-belt tether, conditions the citations described as obvious and detectable during inspection and maintenance. Judge William B. Moran held that general claims about contractor policies and training did not explain a 50 percent penalty reduction when those programs failed to detect the defects. He denied settlement and directed the Secretary to provide detailed support, prepare for hearing, and report whether the trucking contractor was separately cited.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 77.404 and 77.1606
• Outcome: The proposed 50 percent settlement reduction was denied pending factual support or hearing.
• Key point: General references to safety policies and training do not justify a large penalty reduction when obvious equipment defects went undetected.

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:
202-434-9933 / FAX: 202-434-9949

March 26, 2015

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH     

ADMINISTRATION
(MSHA),

Petitioner,

v.

REMINGTON,
LLC,

Respondent.

CIVIL
PENALTY PROCEEDING

Docket
No. WEVA 2012-533

A.C.
No. 46-09230-275179

Mine:
Winchester Mine

DECISION DENYING
SETTLEMENT MOTION

Before:                        Judge
Moran

This case is before the Court upon a
petition for assessment of a civil penalty under section 105(d) of the Federal
Mine Safety and Health Act of 1977. The Secretary has filed a motion to approve
settlement.[1]
The originally assessed amount was $8,325.00, and the proposed settlement is
for $4,163.00. The Court has reviewed the Secretary’s motion but has
reservations about the basis offered for the 50% reduction in the penalty for
Citation Nos. 8120822 and 8120824.

For No. 8120822, the cited standard, 30
C.F.R. § 77.1606, entitled “Loading and haulage equipment; inspection and
maintenance,” provides that “[m]obile loading and haulage equipment shall be
inspected by a competent person before such equipment is placed in operation
[and that] [e]quipment defects affecting safety shall be recorded and reported
to the mine operator.” Thus, the focus of the standard is upon the inspection
of equipment for defects prior to its use.

The Secretary’s motion states, in
relevant part:

The Operator
asserts that policies were properly in place for any independent contractors
working on its property regarding the proper examination and maintenance of
equipment. Additionally, all such independent contractors were required to
undergo training before working on the mine’s property. Given the steps taken
by the mine operator to ensure that independent contracting companies on its property
work in a safe manner, questions exist as to whether the citation was properly
issued as highly likely or moderate negligence.

It
is noted that, except for a minimal change in the rationale, and with
absolutely no substantive changes to the text of the rationale, the second Citation,
No. 8120824, repeats the language presented to justify Citation No. 8120822.

Examining the Secretary of Labor’s
offered language for Citation No. 8120822, it may be broken down into 2
asserted justifications:

1.      The Operator’s
policies were properly in place for any independent contractors working on its
property regarding the proper examination and maintenance of equipment.

2.      All such
independent contractors were required to undergo training before working on the
mine’s property.

From
that, the Secretary asserts that “[g]iven the steps taken by the mine
operator to ensure that independent contracting companies on its property work
in a safe manner, questions exist as to whether the citation was properly
issued as highly likely or moderate negligence.” (emphasis added). Yet, the
Secretary’s motion does not contend that the gravity or negligence findings
should be modified. The only change is the 50% reduction in the penalty.  

Therefore, it becomes necessary to analyze
exactly what were “the steps taken by the mine operator to ensure that
independent contracting companies on its property work in a safe manner.” This
means, of course, steps taken in advance of the alleged violation. However,
the motion does not identify at all the policies that were in place regarding
the proper examination and maintenance of equipment, nor are any details provided
about the training that “all such independent contractors were required to
undergo [] before working on the mine’s property.”

Set against the detail-free rationale
are the allegations of the citation, which relate that an accident occurred
with a loaded tractor-trailer coal truck in which the driver sustained a
lost-time injury. That citation asserts that following an accident, it was
found that 6 of 10 brakes on a tractor-trailer coal truck were not functioning
properly. This was especially significant, as the truck lost power, began
rolling backwards, and turned over and, as noted, with the driver being
injured. In addition, there was another significant defect beyond the brake
defects in that the seat belt tether was not connected to the body of the truck
cab. As the Inspector stated in the citation, those defects should have been
observed in the pre-operative check of the vehicle. Adding to the seriousness,
the citation noted that the haul road where the accident occurred “is used by
all persons, including miners and vendors traveling to and leaving the mine
site.”

The citation concludes with the
Inspector’s statement that the operator “failed to provide adequate oversight
to ensure the safety of persons on the mine property.” In abating the
violation, the truck was removed from service and additional training was provided
to truck operators.

In the Court’s view, the Secretary’s
motion fails to identify the steps taken in advance to ensure that there are
proper examinations of equipment, nor does the motion provide detail about the
training provided for independent contractors prior to working on the mine’s
property. The claim that “policies were properly in place” for proper
examinations is not supported in the motion and the facts alleged in the
citation refute that claim. Thus, it is disconcerting for the Secretary to tout
“the steps taken by the mine operator to ensure that independent contracting
companies on its property work in a safe manner.”

The second citation alleges a violation
of 30 C.F.R. § 77.404, entitled “Machinery and equipment; operation and maintenance,”
which requires that “[m]obile and stationary machinery and equipment shall be
maintained in safe operating condition and machinery or equipment in unsafe
condition shall be removed from service immediately.” The citation involves the
same tractor-trailer truck and accident identified in Citation No. 8120822. The
focus of this alleged violation is the requirement for maintaining equipment
in safe condition and removing such equipment when it is not safe. The body
of the citation essentially provides additional details concerning the
statement in Citation No. 8120822, that 6 of the 10 brakes on the tractor
trailer were not working. The post-accident investigation revealed that the
truck’s brake shoes were not contacting their drums, and that this was easily
determinable. For the trailer itself, “all four brake units [on it] were functionally
inoperable,” and those defects were likewise easy to detect. The citation also
added to the information provided in the first citation that the “truck operates
in congested areas and travels [a] steep haulroad (sic).” For the
abatement, the citation relates that “[t]he truck and trailer have been removed
from service and additional truck inspection and maintenance programs
have been implemented.” (emphasis added).

The Motion’s assertion that the operator
had proper examination and maintenance procedures in place is negated by the
statements in the citation that show that they were plainly ineffective. Policies
claimed to be “properly . . . in place” cannot support a 50% reduction in a
penalty, where those policies, properly in place or not, miss obvious defects. The
citation makes this point, asserting that the operator failed to provide
adequate oversight or programs to ensure that contractor equipment is being
maintained in safe operating condition. In its rawest form, the Motion
essentially seeks the large reduction for an examination and maintenance
program which was demonstrably ineffective. Accordingly, merely repeating the
inadequately supported justification offered for Citation No. 8120822 does not
work for Citation No. 8120824 either. Therefore, the rationale for this 50%
reduction is also unsupported. It seems obvious that, based on the citation’s
statement, which was not challenged in the Motion, the equipment was not being
properly maintained and the defects were, as the citation alleges, easily
detectable. Further, the Secretary cannot claim as the basis for its penalty
reduction, that the training, alleged to have been provided for proper
examination and maintenance, was properly in place where there was a need to
implement additional truck inspection and maintenance programs.

In sum, an inspection program to ensure
that defects affecting safety are detected, a training program to ensure that
those who make such inspections are competent, and related training to ensure
that unsafe equipment is immediately removed from service cannot be cited as
the basis for a penalty reduction, let alone a reduction on the order of 50%,
where such programs utterly fail to detect obvious defects and patently unsafe
equipment. Accordingly, the Secretary’s Motion is DENIED.

The Secretary is directed to either
provide the required information to support the claims about the nature of the
mine operator’s policies that were in place and the details of the training
provided prior to the accident and to then explain how those translate into a
justification for a 50% penalty reduction, or to prepare for hearing. The
Secretary is further directed to advise the Court of his intentions within two
weeks from the issuance of this decision. The Court also directs the Secretary
to advise it as to whether the contractor, Powers Trucking Company, was cited
for these alleged violations, and if so, the status of such matters.

/s/ William B.
Moran

William B. Moran

Administrative Law Judge

Distribution:

Anh T. LyJordan, Esq., U. S. Department
of Labor, 1100 Wilson Blvd., 22nd Floor West, Arlington, VA 22209-2247

Jonathan R. Ellis, Steptoe & Johnson
PLLC, Chase Tower, Eighth Floor, PO Box 1588, Charleston, WV 25326

[1] In paragraphs 3
and 4 of the Motion to Approve Settlement, the Secretary continues to stake out
his position that he need not explain the basis for settlement, a position
which is immaterial and impertinent to the issues legitimately before the
Commission. Those paragraphs incorrectly cite and interpret the case law and
misrepresent the statute, regulations, and Congressional intent regarding
settlements under the Mine Act.