Secretary of Labor v. Hopkins Hill Sand & Stone, LLC

Plain-English summary

Hopkins Hill's general manager suffered a fatal heart attack from natural causes while at the company's open-pit crushed stone mine. Mine management knew of the death by 11:24 a.m. but did not notify MSHA until 12:56 p.m., one hour and 17 minutes after the 15-minute reporting deadline. Judge Jacqueline R. Bulluck held that every death at a mine is a reportable accident under section 50.10(a), regardless of whether it was work-related. She found low negligence because the company reported the death within about an hour and a half of the deadline and the delay did not expose other miners to an ongoing hazard. The citation was affirmed and the statutory minimum penalty of $5,903 was assessed.

Decision snapshot

• Cited standard: 30 C.F.R. § 50.10(a)
• Outcome: The late-notification citation was affirmed with low negligence, and a $5,903 penalty was assessed.
• Key point: A mine operator must notify MSHA within 15 minutes after it knows or should know of any death at the mine, including a death from natural causes.

Full text (FMSHRC public release)

F EDERA L MIN E SAFET Y AN D HEALT H REVIE W COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNS Y LVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9900 / FAX: 202-434-9954

December 18, 2019

SECRETAR Y O F LABOR                                  :                 CIVIL
PENALTY PROCEEDING:

MIN E SAFET Y
AN D HEALTH                     :    

ADMINISTRATIO N (MSHA),                       :                 Docket
No. YORK 2019-0025

Petitioner                                       :                 A.C . No. 37-00202-481040

:

v.                                                   :    

:    

HOPKINS HILL SAND & STONE, LLC,         :

Respondent                                                :                 Mine:
Hopkins Hill Sand & Stone

SUMMARY DECISION

Before: Judge
Bulluck

This
case is before me upon a Petition for Assessment of Civil Penalty filed by the
Secretary of Labor (“Secretary”) on behalf of the Mine Safety and Health
Administration (“MSHA”) against Hopkins Hill Sand & Stone, LLC (“Hopkins
Hill”), pursuant to section 105(d) of the Federal Mine Safety and Health Act of
1977 (“ Mine
Act ”), 30
U.S.C. § 815(d). The Secretary seeks a civil penalty in the amount of $5,903.00
for an alleged violation of this mandatory safety standard regarding timely
accident notification.

Hopkins
Hill filed a Motion for Summary Decision (“Resp’t Mot.”); a Memorandum in
Support of Respondent’s Motion for Summary Decision (“Resp’t Mem.”), including Barry
Manfredi’s
Affidavit ( “ Manfredi
Aff. ”)
and an attached exhibit (“Ex. A”); Joint Factual Stipulations of the Parties
(“Jt. Stips.”); and a Supplemental Memorandum on Behalf of Respondent In
Support of Motion for Summary Decision (“Resp’t Supp. Mem.”). The Secretary
filed an Opposition to Respondent’s Motion for Summary Decision and
Cross-Motion for Summary Decision (“Sec’y Mot.”); a Memorandum of Points and
Authority in Support of His Opposition to Respondent’s Motion for Summary
Decision and In Support of Secretary’s Cross-Motion for Summary Decision
(“Sec’y Mem.”), and attached exhibits (“ Exs. P –1 through P–8”),
including a copy of the Citation, MSHA Inspector Jerry Anguiano’s notes, Patrol
Officer Michael Dugan’s Incident Report, and Renzo Marietti’s Witness
Statement; and Inspector Jerry Anguiano’s Affidavit (“Anguiano Aff.”). The
following are issues for resolution in this case: (1) whether Hopkins Hill
violated 30 C.F.R. § 50.10(a) and, if so, (2) whether Hopkins Hill was
moderately negligent in violating the standard, and (3) the appropriate
penalty.

Pursuant
to Commission Rule 67(b), “[a] motion for summary decision shall be granted
only if the entire record, including the 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.

It
is well settled that summary decision is an extraordinary measure and the
Commission has analogized it to Rule 56 of the Federal Rules of Civil
Procedure, which the Supreme Court has construed to authorize summary judgment
only “upon proper showings of the lack of a genuine, triable issue of material
fact.” Hanson Aggregates New York, Inc. , 29 FMSHRC 4, 9 (Jan. 2007)
(citations omitted). When considering a motion for summary decision, the
Commission has noted that “the Supreme Court has stated that ‘we look at the
record on summary judgment in the light most favorable to . . . the party
opposing the motion,’ and that ‘the inferences to be drawn from the underlying
facts contained in [the] materials [supporting the motion] must be viewed in
the light most favorable to the party opposing the motion.”’ Id.   at 9
(quoting   Poller
v. Columbia Broadcasting Sys., Inc. , 368 U.S. 464, 473 (1962);  United
States v. Diebold, Inc. , 369 U.S. 654, 655 (1962)). Moreover, Commission
Judges should not grant motions for summary decision “unless the entire record
shows a right to judgment with such clarity as to leave no room for controversy
and establishes affirmatively that the adverse party cannot prevail under any
circumstances.” KenAmerican Res., Inc. , 38 FMSHRC
1943, 1947 (Aug. 2016) (quoting Campbell v. Hewitt, Coleman &
Assocs., Inc. ,
21 F.3d 52, 55 (4th Cir. 1994)); but see Scott v. Harris , 550 U.S. 372,
380 (2007) (holding that there is no genuine issue for trial unless a rational
trier of fact could find for the nonmoving party).

Based
on agreement of the parties to file cross-motions for summary decision and the
facts, as represented by the parties, I find that there is no genuine issue as
to any material fact. For the reasons set forth below, I conclude that the
Secretary is entitled to summary decision as a matter of law,  AFFIRM  the
Citation, and assess a penalty of $5,903.00 against Hopkins Hill.

I.                   
Joint
Stipulations

Stipulations of
Fact: [1]

1. Hopkins
   Hill Sand and Stone (“the mine”) is an “operator” as defined in Section 3(d) of
   the Mine Act, 30 U.S.C. § 802(d), at the crushed stone mining plant at which
   the Citation at issue in this proceeding was issued.

2. The
   mine at issue is located at 190 New London Turnpike in West Greenwich, Rhode
   Island.

3. The
   mine at issue is subject to the jurisdiction of the Mine Act.

4. This
   proceeding is subject to the jurisdiction of the Federal Mine Safety and Health
   Review Commission and its designated Administrative Law Judges, pursuant to
   sections 105 and 133 of the Mine Act, 30 U.S.C. §§ 815, 823.

5. The
   mine is an open-pit crushed stone plant.

6. On
   November 29, 2018, General Manager Bernard Alderson, aged 71, reported to work
   at the mine site, made his rounds at the plant, left the mine site to get
   coffee for himself and others, drove to Warrick, Rhode Island to meet with the
   owner, and returned to the mine site at about 9:45 a.m. Mr. Alderson was in the
   office area between 9:45 a.m. and 11:00 a.m., not performing any physical
   duties.

7. At
   about 11:00 a.m., Mr. Alderson was observed to be lying on the ground face-down
   by an employee of the Respondent, Kurt Wilcox. Mr. Wilcox, in turn, informed
   Steven Sustakowsky (dispatcher) about Mr. Alderson’s situation, and Mr.
   Sustakowsky called “911” and then summoned Renzo Marietti, an employee of the
   Respondent, by radio to help Mr. Anderson. Mr. Sustakowsky called the main
   office at around 11:12 a.m.

8. Mr.
   Marietti moved Mr. Alderson to level ground and began chest compressions, which
   were maintained until the West Greenwich Rescue EMS arrived.

9. The
   EMS put a heart monitor on Mr. Alderson, but it was flat-lining as Mr. Marietti
   observed it.

10. At
    11:24 a.m., EMS Paramedic Kelly Guastini called the death of Mr. Alderson.

11. At
    11:25 a.m., Police Officer Michael P. Duggan arrived at the mine and began an
    investigation. Officer Duggan in his report stated that when he observed Mr.
    Alderson, his face was blue in color.

12. At
    11:25 a.m., Barry Manfredi, the environmental health and safety director,
    received a phone call from Steve Cardi II, Vice President and COO, notifying Mr.
    Manfredi of Mr. Alderson’s heart attack.

13. At
    12:56 p.m., Barry Manfredi called the MSHA Hot Line to report Mr. Alderson’s
    heart attack.

14. At
    1:20 p.m., the Medical Examiner took control of Mr. Alderson’s body.

15. Mr.
    Alderson’s death was a natural death and not accident-related.

II.                
Factual
Background

On
November 29, 2018, Hopkins Hill’s general manager Bernard Alderson suffered a
fatal heart attack while working at the mine site, an open-pit crushed stone
plant in West Greenwich, Rhode Island. Jt. Stips. 1, 2, 5, 6, 10. At
approximately 11:00 a.m., Kurt Wilcox found Alderson lying face-down on the ground
and informed the dispatcher, Steven Sustakowsky, who called “911,” the main
office around 11:12 a.m., and then requested help from Hopkins Hill employee Renzo
Marietti. Jt. Stip 7. Marietti arrived on the scene around 11:15 a.m. and moved
Alderson onto the ground below the stairs, where he began chest compressions
until West Greenwich Rescue EMS arrived. Jt. Stip. 8; Ex. P–8. According to
Marietti, Alderson was already blue, cold, and unresponsive. Exs. P–7; P–8. At
approximately 11:18 a.m., EMS arrived and placed a heart monitor on Alderson,
which Marietti observed flat-lining. Jt. Stip. 9; Ex. P–6 at 2. At 11:24 a.m.,
EMS Paramedic Kelly Guastini pronounced Alderson dead. Jt. Stip. 10; Ex. P–7. At 11:25
a.m., Vice President Steve Cardi called Hopkins Hill’s environmental health and
safety director, Barry Manfredi. Jt. Stip. 12. Manfredi called MSHA to
report Alderson’s death at 12:56 p.m. Jt. Stip. 13; Ex. P–3.

On
November 30, 2018, MSHA Inspector Jerry Anguiano was assigned to investigate
the death. Anguiano Aff. After inspecting the scene and interviewing witnesses,
Anguiano issued the Citation at issue to Hopkins Hill for its failure to report
Alderson’s death to MSHA within 15 minutes of the accident. Anguiano Aff.

III.             
Findings
of Fact and Conclusions of Law

Inspector
Anguiano issued 104(a) Citation No. 9412696 on December 3, 2018, alleging a
violation of section 50.10(a) that was “unlikely” to cause an injury, and was
due to Hopkins Hill’s “low” negligence. [2] The “Condition or Practice” is
described as follows:

The
Mine Operator failed to notify the Mine Safety & Health Administration
(MSHA) that General Manager – Bernard Alderson had suffered a fatal heart
attack, while working at the Hopkins Hill Sand Stone mine site. On Thursday
November 29, 2018, at approximately 11:00 a.m. the Manager was discovered
facing down on the stairway and landing platform that leads to the inside of
the Lab building. The West Greenwich Rescue 2 EMS – Kelly Guastini, called the
time of death at 11:24 a.m. The Environmental Health & Safety (EH&S)
Director – Barry Manfredi was out of town when the death occurred but, he
received a cell phone call from the Vice President of Operations – Steve Cardia
at 11:27 a.m. At 12:56 p.m. Mr. Manfredi dialed the 1-800 Hot Line, to notify
MSHA about the heart attack. MSHA initiated an investigation on Friday November
30, 2018.

Ex. P–3. Anguiano
terminated the Citation later in the afternoon of December 3, after reviewing
MSHA’s accident reporting requirements with environmental health and safety director
Manfredi, and Respondent established and posted a written plan highlighting the
appropriate actions to be taken under section 50.10(a). Ex. P–3.

A.    
Fact
of Violation

Hopkins
Hill argues that it is entitled to summary decision because Alderson’s fatal
heart attack was the result of a non-occupational illness from natural causes
rather than any work-related “ accident ” within the meaning of sections
50.10(a) and 50.2(h)(1) and, therefore, no immediate reporting was required. Resp’t
Mem. at 1-4. On the other hand, the Secretary takes the position that he is
entitled to summary decision because any death occurring at a mine is a
reportable accident under section 50.10(a). Sec’y Mem. at 3-4.

In
relevant part, section 103(j) of the Mine Act provides:

[i]n
the event of any accident occurring in any coal or other mine, the operator
shall notify the Secretary thereof . . . . For purposes of the preceding
sentence, the notification required shall be provided by the operator within 15
minutes of the time at which the operator realizes that the death of an
individual at the mine . . . has occurred.

30 U.S.C. §
813(j). Accordingly, section 3(k) of the Mine Act defines “ accident ” as “a mine
explosion, mine ignition, mine fire, or mine inundation, or injury to, or
death of, any person .” 30 U.S.C. § 802(k) (emphasis added).

Section 50.10(a) of the Secretary’s
regulations largely mirrors the mandate of the Mine Act, requiring that the
operator report an accident at a mine once it is known or should have been
known within 15 minutes. Included in the definitions of “accident” is “[a]
death of an individual at a mine.” 30 C.F.R. § 50.2(h)(1). Moreover, the
Commission has emphasized that questions of whether an operator should report
an accident to MSHA “must be resolved in favor of notification.” Signal Peak
Energy, LLC , 37 FMSHRC 470, 476-77 (Mar. 2015).

Notably, the question of whether the
requirement of section 50.10(a) applies to fatal heart attacks at a mine site was
decided in a remarkably similar case, finding a violation, which was appealed
to the Commission. See Richmond Sand & Stone , 41 FMSHRC 12
(Jan. 2019) (ALJ). In its recent affirmation of the decision, the Commission found
that:

[T]he
plain language of MSHA’s reporting regulations at 30 C.F.R. Part 50
unambiguously defines any on-site death as an “accident” subject to the
immediate reporting requirement in section 50.10(a). Accordingly,
[Respondent’s] failure to timely notify MSHA of a fatal heart attack at the mine
site violated the standard.

Richmond Sand & Stone, LLC , 41 FMSHRC 402, 407
(Aug. 2019); see also Consol Pennsylvania Coal Co., LLC v. FMSHRC ,
941 F.3d 95 (3d Cir. 2019) (emphasizing the clarity of section 50.10 and the
critical importance of reporting). As the Commission makes clear in Richmond ,
by requiring reporting of all deaths at mine sites, the Secretary is fulfilling
Part 50’s purpose to “implement MSHA’s authority to investigate, and to obtain
and utilize information pertaining to, accidents, injuries, and illnesses
occurring or originating in mines.” Richmond , 41 FMSHRC at 405; see
also 30 C.F.R. § 50.1. The reporting scheme is critical to MSHA’s
investigations to ensure prospective safety at the mines. In the moment, a
miner or the operator may not be able to readily ascertain the cause of death
and, therefore, failure to report could expose more miners to unknown or
unidentified hazards. See Signal Peak , 37 FMSHRC at 477 (citing Emergency
Mine Evacuation , 71 Fed. Reg. 71430, 71431 (Dec. 8, 2006)). Immediate
reporting also allows MSHA to gather data that it can analyze in aggregate
regarding the causes of deaths at all mine sites to improve miner safety. See
Richmond , 41 FMSHRC at 405-06. All of this information is crucial for the
Secretary to access, but it can only be used if it is timely gathered and
preserved. Hence, the effectiveness of the reporting requirement in fulfilling
the objectives of the Mine Act depends upon compliance by mine operators.  

Using
nearly identical language and essentially the same arguments that
were unsuccessfully raised in Richmond , Hopkins Hill relies on  Vulcan
Construction Materials and Hanson Aggregates Midwest to support its
contention that there was no reportable accident. Resp’t Mem. at 4-7. In these
cases, judges found that nonfatal heart attacks
were not injuries for purposes of mandatory MSHA reporting under section
50.10(b). [3] See Vulcan Constr. Materials ,
35 FMSHRC 2868, 2874-75, 78 (Aug. 2013) (ALJ); Hanson Aggregates Midwest ,
35 FMSHRC 2412, 2416 (Aug. 2013) (ALJ). Hopkins Hill’s reliance on Vulcan
and Hanson is misplaced, however, because these cases contemplate the
reasonableness of injuries resulting in death, rather than deaths
occurring at mines, for whatever reasons, whether natural or accident related. Likewise,
Hopkins Hill’s contention that my decision in Nyrstar Gordonsville, LLC , 38 FMSHRC 1819
(July 2016) (ALJ), was wrongly decided has been invalidated by the Richmond
and Consol decisions. See Resp’ t Mem. at 7 .

Finally,
Hopkins Hill argues that sections 50.10 and 50.2(h)(1) do not provide a usable
definition of “ accident ” because the
sections presuppose a predicate accident, not defined by the regulations, and
the inclusion of natural death is overly broad. Resp’t Mem. at 3-4. Therefore,
according to Hopkins Hill, the word “ accident ” should be
construed according to its ordinary meaning. [4] Resp’t Mem. at 4. This argument is
also misguided, as “Part 50 unambiguously defines any on-site death as an ‘accident’
subject to the immediate reporting requirement.” Richmond , 41 FMSHRC at 407
(emphasis
added).

It
is undisputed that Alderson had been lying on the ground face-down and
unresponsive around 11:00 a.m. At 11:15 a.m., Marietti moved Alderson and began
chest compressions. By Marietti’s account, Alderson was blue, cold, and never
responsive, and the heart monitor placed by EMS was flat-lining. When EMS
Paramedic Guastini pronounced Alderson dead at 11:24 a.m., Vice President Cardi
proceeded to call environmental health and safety director Manfredi at 11:25 a.m.
Based on these facts, I find that Hopkins Hill management knew or should have
known of Alderson’s death by 11:24 a.m. and, at that time, the 15-minute
reporting interval began to run.

Under
these circumstances, having found that Hopkins Hill knew or should have known
that it had experienced a reportable accident at the mine by 11:24 a.m., it had
a duty to notify MSHA by 11:39 a.m. Hopkins Hill contacted MSHA at 12:56 p.m., one
hour and 17 minutes outside of the 15-minute window. Accordingly, I conclude
that Hopkins Hill violated the reporting requirement of  section
50.10(a).

B.     
Gravity
and Negligence

Based
on the clarity of the standard and regulatory definition of “ accident, ” and the
importance of timely notice to MSHA as explained in Commission precedent,
Hopkins Hill’s failure to report Alderson’s death was a significant breach of
duty. The record establishes, however, that Alderson’s death did not occur as a
result of an ongoing hazard affecting miners’ safety, and I find that the delay
in reporting the accident to MSHA had no likelihood of putting other miners in
peril.

The
Secretary contends that Hopkins Hill’s negligence should be elevated to moderate
because environmental health and safety director Manfredi stated that he knew
he needed to call MSHA, but was unaware of the need to call within 15 minutes;
therefore, managers who become aware of a death at a mine should be prepared to
adhere to the reporting requirements of section 50.10(a). Sec’y Mem. at 6.

There
is a contradiction between Anguiano’s Affidavit, stating that Manfredi was
aware of the reporting requirement, but unaware of the 15-minute mandate, and
Manfredi’s Affidavit, indicating that he believed that only work-related
accidents were reportable. See Anguiano Aff. at 1-2; compare with Manfredi Aff.
at 1. In fact, Manfredi claims that the report made to MSHA was merely
informational rather than the result of any perceived duty. Manfredi Aff. at 1.
Taking Manfredi at his word, Hopkins Hill management is responsible for knowing
and adhering to the reporting regulations that govern its operations and,
because Alderson’s death was reported to MSHA within an hour and a half of the
mandated 15-minutes, I ascribe less than ordinary negligence to the violation,
consistent with the Citation, as originally issued.

IV.             
Penalty

While
the Secretary has proposed a civil penalty of $5,903.00, the judge must
independently determine the appropriate assessment by proper consideration of
the six penalty criteria set forth in section 110(i) of the Act, 30 U.S.C.
§ 820(i). See Sellersburg Co. , 5 FMSHRC 287, 291-92 (Mar. 1983),  aff’d  736
F.2d 1147 (7th Cir. 1984). Notwithstanding application of  Sellersburg  criteria,
however, the Mine Act imposes a minimum penalty of $5,903.00 for  section
50.10   violations. [5] 30
C.F.R. §
110(a)(2). The Commission has found that its judges are bound by the statutory
minimums imposed by the Mine Act. Consol Pennsylvania Coal Co., LLC , 40
FMSHRC 998, 1008 (Aug. 2018), aff’d , 941 F.3d 95 (3d Cir. 2019) (reemphasizing
that the statutory minimums imposed by 30 U.S.C. § 820(a)(4) for reviewing courts must
also apply to the Commission). Therefore, in light of Consol , Respondent’s
reliance on E.S. Stone & Structure is misplaced. Resp’t Supp. Mem.; see
E.S. Stone & Structure , 33 FMSHRC 515 (Jan. 2011) (ALJ).

Applying the penalty criteria, and
based upon a review of MSHA’s online records, I find that Hopkins Hill is a
small operator, with no prior violations of section 50.10(a), and an
overall violation history that is not an aggravating factor in assessing an appropriate
penalty. There was no evidence proffered that the civil penalty proposed by the
Secretary will affect Hopkins Hill’s ability to continue in business. I also
find that Hopkins Hill demonstrated good faith in achieving rapid compliance
after notification of the violation. The remaining criteria involve
consideration of the gravity of the violation and Hopkins Hill’s negligence in
committing it. I have found that this was a very serious violation, and that
Hopkins Hill demonstrated low negligence in committing it. Therefore, I find
that a penalty of $5,903.00, the statutory minimum, is appropriate.

ORDER

ACCORDINGLY , the
Secretary’s Cross-Motion for Summary Decision is  GRANTED , Respondent’s
Motion for Summary Decision is  DENIED,  and it
is  ORDERED  that
Hopkins Hill Sand & Stone, LLC,  PAY  a civil penalty of $5,903.00
within 30 days of the
date of this Decision. [6]

/s/
Jacqueline R. Bulluck

Jacqueline R.  Bulluck

Administrative
Law Judge

Distribution:

James
Polianites, Office of the Regional Solicitor, U.S. Department of Labor,
Government Center, JFK Federal Building, Room E-375, Boston, MA 02203

Girard
R. Visconti, Shechtman Halperin Savage, LLP, 1080 Main Street, Pawtucket, RI
02860

/adm

[1] The Joint Stipulations have been
numbered for clarity in this Decision.

[2] 30 C.F.R. § 50.10(a) states that:
“[t]he operator shall immediately contact MSHA at once without delay and within
15 minutes . . . once the operator knows or should know that an accident has
occurred involving: [a] death of an individual at the mine .” (emphasis
added).

[3] 30 C.F.R. § 50.10(b) requires the
operator to immediately contact MSHA within 15 minutes of “[a]n injury
of an individual at the mine which has a reasonable potential to
cause death .” (emphasis added).

[4] Hopkins Hill’s reliance on a dictionary
definition of “accident” sidesteps the Mine Act’s and regulations’ inclusion of
“any death” in a mine within the ambit of the 15-minute reporting requirement.

[5] Section 110(a)(2) of the Mine Act
states that an operator “who fails to provide timely notification to the
Secretary as required under 103(j) of [the Mine Act] (relating to the 15-minute
requirement) shall be assessed a civil penalty by the Secretary of not less
than $5,000 and not more than $60,000.” 30 U.S.C. § 820(a)(2). Similarly, section
100.4(c) of the Secretary’s penalty regulations states that the penalty for
failure to provide timely notification to MSHA “will not be less than $5,000
and not more than $65,000 for the following accidents: (1) the death of an
individual at the mine.” 30 C.F.R. § 100.4(c). In January 2018, the minimum
penalty was increased to $5,903 and the maximum penalty was increased to
$70,834 to account for inflation. 30 C.F.R. § 100.4(c); see also Department
of Labor Federal Civil Penalties Inflation Adjustment Act Annual Adjustments
for 2018 , 83 Fed. Reg. 7, 15 (Jan. 2018).

[6] Payment should be sent to: Mine Safety
and Health Administration, U.S. Department of Labor, Payment Office, P.O. Box
790390, St. Louis, MO 63179-0390. Please include docket number and AC number.