Secretary of Labor v. Kanaval's Excavating & Gravel

Plain-English summary

Kanaval's Excavating & Gravel filed its fourth-quarter employment report 14 days after the regulatory deadline. The one-person sand and gravel mine was seasonally closed when the report was due, and the operator corrected the oversight before MSHA identified it. Judge Alan G. Paez granted summary decision because the late filing was undisputed, but he reduced the negligence finding from moderate to low. He found that the paperwork violation posed no danger, the operator had no similar recent history, and the proposed $100 minimum was excessive for the circumstances. The citation was modified and a $50 penalty was assessed.

Decision snapshot

• Cited standard: 30 C.F.R. § 50.30(a)
• Outcome: Citation 8713473 was affirmed but modified from moderate to low negligence, and the penalty was reduced to $50.
• Key point: A late quarterly employment report remains a violation, but seasonal closure, voluntary correction, negligible gravity, and a very small operation can reduce negligence and penalty.

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:
202-434-9958 / FAX: 202-434-9949

October 24, 2014

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

KANAVAL’S
EXCAVATING &

GRAVEL,

Respondent

CIVIL
PENALTY PROCEEDING

Docket
No. YORK 2013-217-M

A.C.
No. 30-03156-329374

Mine:
Kanaval’s Excavating & Gravel

ORDER GRANTING SECRETARY’S
MOTION FOR SUMMARY DECISION

This
case is before me upon a petition for assessment of a civil penalty filed by
the Secretary of Labor (“Secretary”) against Kanaval’s Excavating & Gravel
(“Kanaval’s” or “Respondent”) on September 18, 2013, pursuant to section 105 of
the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C.
§ 815. Respondent timely filed its Answer contesting the $100.00 proposed
penalty, and Chief Administrative Law Judge Robert J. Lesnick assigned Docket
No. YORK 2013-217-M to me on December 2, 2013.

I.  STATEMENT OF
THE CASE

Citation No. 8713473, the sole
violation at issue in this case, charges Respondent with a violation of
30 C.F.R. § 50.30(a) for failing to file a report on the mine’s
employment activity within the amount of time required by the regulation.[1]
On July 30, 2014, I issued an order granting the Secretary’s request for a stay
of the parties’ responses to my Prehearing Order until Friday, August 22, 2014,
so the Solicitor of Labor could file a motion for summary decision in the
matter. Thereafter, on August 4, 2014, the Secretary filed his Motion for
Summary Decision, wherein he requests that I affirm the citation but reduce the
negligence finding to “low” and assess the Secretary’s proposed penalty.[2]
(Sec’y Mot. at 1–2; Sec’y Mem. at 3.) I subsequently lifted the stay on August

22. Respondent did not file a response to the Secretary’s Motion.

II.  ISSUES

The Secretary
asserts that Respondent was properly cited for a violation of section 50.30(a)
but that the negligence determination should be reduced to “low.” (Sec’y Mot.
at 1–2; Sec’y Mem. at 3.) The Secretary further asserts that there are no
material facts in dispute. (Sec’y Mot. at 1–2.) Respondent, on the other hand, contends
that the citation should be nullified. (Resp’t Answer at 1.)

The issues before me are as follows: (1)
whether the Secretary is entitled to summary decision because the record
establishes the elements of a violation of 30 C.F.R. § 50.30(a), as well as the
Secretary’s allegations regarding the level of gravity and negligence; and, (2)
whether the Secretary’s proposed penalty is appropriate. For the reasons that
follow, the Secretary’s motion for summary decision is GRANTED.

III.  FINDINGS
OF FACT

Kanaval’s
Excavating & Gravel was a surface mine producing sand and gravel in Cohocton,
New York. (Sec’y Mem., Ex. 1.) Subsequent to the inspection in this matter, the
mine permanently closed in January 2014. See Mine Safety & Health Admin., Mine Data Retrieval System,
http://www.msha.gov/drs/drshome.htm (last visited October 23, 2014). Prior
to that, the mine operated sporadically for several years, closing for
several months at a time. (Sec’y Mem., Ex. 3.) During the fourth quarter of
2012, an average of one person worked a total of seventy-six hours at the mine.
(Id.) Kanaval’s closed for the winter season on November 4, 2012,
opening again only on April 16, 2013. (Resp’t Answer at 1.)

On June 19, 2013, MSHA Inspector Michael
Carey conducted an inspection of Kanaval’s mine. (Sec’y Mem., Ex. 2.) During
his inspection, Carey reviewed the mine’s MSHA Form 7000-2—Quarterly Employment
and Coal Production Reports. (Id.) Carey noted that Respondent submitted
its Quarterly Employment Report on January 29, 2013. (Id.) Carey
subsequently issued Citation No. 8713473, alleging a violation of 30 C.F.R.
§ 50.30(a), which reads as follows:

An MSHA #7000-2 (Quarterly Employment
Report) for the 4th Quarter of 2012 (October, November, December) was not
completed nor submitted to MSHA’s Health and Safety Analysis Center prior to
January 15, 2013. The form was submitted on January 29, 2013.

(Sec’y
Mem., Ex. A.) Carey determined that there was no likelihood this paperwork
violation would cause injury or illness to any workers. (Id.) Carey
designated Kanaval’s negligence as moderate because the company had experience
filing the quarterly employment reports. (Sec’y Mem., Ex. 2.)

IV.  PRINCIPLES
OF LAW—ANALYSIS—CONCLUSIONS OF LAW

A.
       Principles of Law

1. Summary Decision

Commission Rule 67(b) provides that “[a]
motion for summary decision shall be granted only if the entire record,
including pleadings, depositions, answers to interrogatories, admissions, and
affidavits, shows: (1) That there is no genuine issue as to any material fact;
and (2) That the moving party is entitled to summary decision as a matter of
law.” 29 C.F.R. § 2700.67(b). The Commission has consistently recognized that
summary decision is an “extraordinary procedure,” analogizing Commission Rule
67 to Rule 56 of the Federal Rules of Civil Procedure. Lakeview Rock Prods.,
Inc., 33 FMSHRC 2985, 2987 (Dec. 2011) (citations omitted). The Supreme
Court has determined that summary judgment is appropriate “upon proper showings
of the lack of a genuine, triable issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 327 (1986).

2. Section 50.30(a)

Section
50.30(a) requires that a mine operator (1) submit a Quarterly Employment Report
(2) within fifteen days of the end of a calendar quarter (3) for any quarter in
which an individual worked in the mine.

B.
       Analysis and Conclusions of Law

1. Summary Decision is Appropriate

Here,
there is no genuine dispute over the facts of the violation. Respondent, who is
pro se, declined to respond to the Secretary’s Motion for Summary
Decision despite my office’s repeated efforts to elicit a response.[3]
Nevertheless, Respondent in his Answer does not challenge the Secretary’s
assertions that the mine operated during the fourth quarter of 2012 and that
Kanaval’s filed its quarterly report two weeks late. Indeed, Respondent admits
that the mine operated until November 4, 2012, more than a month into the
fourth quarter of the year. (Resp’t Answer at 1.) Therefore, I conclude that
summary decision is appropriate in this case.

2.  Citation
No. 8713473

The
facts of this paperwork violation are uncontroverted. During the fourth quarter
of 2012, one person worked seventy-two hours at Kanaval’s Excavating &
Gravel. The fourth quarter ended December 31, 2012. 30 C.F.R. § 50.30–1(b). Respondent
therefore was required to file a Quarterly Employment Report by January 15,
2013. Kanaval’s instead filed the report on January 29, 2013, two weeks late, thus
fulfilling the elements of a violation of 30 C.F.R. § 50.30(a).[4]
Accordingly, I conclude that Kanaval’s violated section 50.30(a).

Inspector
Carey determined in the citation that there was no likelihood that this
violation would cause injury or illness. Indeed, there is no suggestion that
Kanaval’s tardy filing posed a threat to anyone. I conclude that the Secretary
appropriately determined that there was no likelihood that this paperwork violation
could cause injury or illness to any miner.

While Inspector Carey decided Kanaval’s
tardy filing amounted to moderate negligence, the Secretary argues in the
memorandum in support of his motion that Respondent’s negligence would more
appropriately be judged as “low.” (Sec’y Mem. at 3.) I agree. Indeed, Kanaval’s
mine was closed in January 2013, when the Quarterly Employment Report was due. In
addition, Respondent eventually filed the paperwork on his own without being
prompted by MSHA. This evidence suggests Kanaval’s negligence was low. See
30 C.F.R. § 100.3(d) at Table X (suggesting “low negligence” where the
operator “knew or should have known of the violative condition or practice, but
there are considerable mitigating circumstances.”). In my determination, the
fact that this one-person mine was closed during the period when the report was
due is a considerable mitigating circumstance, especially when the sole
proprietor recognized his oversight and filed the paperwork on his own just two
weeks after the deadline.

I therefore conclude that Respondent violated
30 C.F.R. § 50.30(a), that the violation had no likelihood of causing
injury or illness to any miners, and that Respondent’s negligence was low. Consequently,
I determine that the Secretary is entitled to summary decision as a matter of
law.

V.  PENALTY

The Secretary
proposed a $100.00 civil penalty for this violation, the minimum penalty under
the Secretary’s penalty criteria in his section 100 regulations. 30 C.F.R.
§ 100.3(g). Commission Administrative Law Judges are not bound by the
Secretary’s penalty criteria but by the Mine Act and the Commission’s
interpretation of the statute. See Mining & Property Specialists, 33
FMSHRC 2961 (Dec. 2011). Under section 110(i) of the Mine Act, I must consider
six criteria in assessing a civil penalty: (1) the operator’s history of
previous violations; (2) the appropriateness of the penalty relative to the
size of the operator’s business; (3) the operator’s negligence; (4) the
penalty’s effect on the operator’s ability to continue in business; (5) the
violation’s gravity; and (6) the demonstrated good faith of the operator in
attempting to achieve rapid compliance after notification of a violation. 30
U.S.C. § 820(i).

Although
I have determined that Respondent violated section 50.30(a) by filing MSHA form
7000–2 fourteen days late, the gravity of this violation is negligible. The
tardy paperwork in no way placed any miner in danger. As the Secretary himself has
argued, Respondent’s negligence was low. Indeed, Respondent addressed the
oversight before MSHA even noticed the filing error. Moreover, Respondent had
no history of violations of this matter in the two years prior to Inspector
Carey’s visit. (Sec’y Mot. Ex. 4.) Although Kanaval’s eventually abandoned its operation
of the sand and gravel quarry at the start of 2014, Respondent did not argue and
presented no evidence that the Secretary’s penalty would affect the company’s ability
to continue in business. Finally, in considering the appropriateness of the
penalty relative to the size of the operator’s business, I note this mine is an
extremely small, one-man operation where work was performed sporadically
throughout the year.

Based
on the above, I determine the Secretary’s suggested penalty of $100.00 to be excessive.
Upon my consideration of the six penalty criteria, I assess a penalty of $50.00
as appropriate for this paperwork violation. I further note that, although the
Secretary has prosecutorial discretion, the fact that he dedicated the
Solicitor’s resources toward a case of such insignificance is disappointing. This
case is exactly the type of matter that would likely have been resolved quickly
through one of MSHA’s close-out conferences. We live in a world bound by a
scarcity of time and resources. Resources spent pursuing this matter are thus unavailable
for the pursuit of serious violations that could have a real impact on miner safety
and health.

VI.  ORDER

In
light of the foregoing, it is hereby ORDERED that the Secretary’s Motion
for Summary Decision is GRANTED, and Citation No. 8713473 is MODIFIED
by changing the negligence determination from “moderate” to “low.”

WHEREFORE, Respondent is ORDERED
to PAY a penalty of $50.00 within 40 days of this decision.[5]

/s/ Alan G. Paez

Alan
G. Paez

Administrative
Law Judge

Distribution:

Judith
Marblestone, Esq., U.S. Department of Labor, Office of the Regional Solicitor,
201 Varick Street, New York, NY 10014

Michael
Kanaval, Administrator, Kanaval’s Excavating & Gravel, 32 ½ North Main
Street, Cohocton, NY 14826

/lct

[1] Section
50.30(a) provides, in relevant part: “[e]ach
operator of a mine in which an individual worked during any day of a calendar
quarter shall complete a MSHA Form 7000-2 in accordance with the instructions
and criteria in §50.30-1 and submit the original to [MSHA] within 15 days after
the end of each calendar quarter.”

[2] For the
purposes of this decision, references to the Secretary of Labor's Motion for
Summary Decision, Memorandum of Law in Support of the Secretary’s Motion for
Summary Decision, and the exhibits attached thereto are abbreviated as “Sec’y
Mot.,” “Sec’y Mem.,” and “Sec’y Mem., Ex. #,” respectively.

[3] At my request, Law
Clerk Carter Tellinghuisen set up a conference call with the parties in this
case to hear Respondent’s defense and explain to Mr. Kanaval the court’s
procedures for responding to a motion for summary decision. When contacted by
telephone, Mr. Kanaval assured Mr. Tellinghuisen he would participate in the
August 25 conference call. Nevertheless, Mr. Kanaval failed to join the
call. Mr. Tellinghuisen attempted to contact Mr. Kanaval by telephone and email
during the week of August 25 to schedule another conference call. Yet Mr. Kanval
failed to respond to any of these repeated attempts to contact him.

[4] Although
Respondent does not question the facts in this case, it does challenge the
Secretary’s decision to enforce section 50.30(a) on a single-person mine that
was closed at the time of the violation. (Resp’t Answer at 1.) Respondent
further requests that the Secretary review and rewrite its regulations to be
more flexible for such small mines. (Id.) Although I am sympathetic to Respondent’s
position, this is not the forum to request a new rulemaking. See 30 U.S.C.
§ 811.

[5] Payment should
be sent to: U.S. Department of Labor, MSHA, Payment Office, P.O. Box
790390, St. Louis, MO 63179-0390. Please include docket and A.C. numbers.