Secretary of Labor v. John S. Lane & Son, Inc.

Plain-English summary

The settlement covered four citations at John S. Lane & Son's Westfield Quarry. A safe-access citation involving a miner climbing through and above a conveyor chute was reduced to low negligence and a $143 penalty. An unlocked-transformer citation was vacated, while a citation for mounting a cut-off wheel on an unguarded die grinder was changed to unlikely and non-S&S without reducing its $143 penalty. A paperwork citation remained unchanged. The judge criticized the support for several modifications but approved the settlement under Commission precedent, ordering payment of $429 instead of the $747 originally assessed.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.11001, 56.12068, and 56.14025
• Outcome: Settlement of four citations was approved for a total penalty of $429.
• Key point: The settlement reduced the safe-access finding, vacated the transformer citation, and removed S&S from the cut-off-wheel citation.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9933

FAX: 202-434-9949

|
SECRETARY OF LABOR ## MINE SAFETY AND HEALTHADMINISTRATION (MSHA), Petitioner
v.

JOHN S. LANE & SON INC,Respondent |

|
|
CIVIL PENALTY PROCEEDING
Docket No. YORK 2023-0051 A.C. No. 19-00014-571201
Mine: Westfield Quarry Plant 78
|

DECISION APPROVING SETTLEMENT

Before: Judge William 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 Conference and Litigation
Representative, (“CLR”), has filed a motion to approve settlement. The
originally assessed amount was $[747.00] and the proposed
settlement is for $[429.00]. The amounts and modifications are
reflected in the following table.

|
|
|
|
|
|
9714863 |
$318.00 |
$143.00 |
Modify to low negligence
|
|
9714864 |
$143.00 |
$0.00 |
Vacate |
|
9714865 |
$143.00 |
$143.00 |
Modify to unlikely, not significant and substantial |
|
9714866 |
$143.00 |
$143.00 |
No changes[1] |
|
|
$747.00 |
$429.00 |
|

The Court is aware that the penalties in this docket, even as proposed, are of low dollar amounts. However, in the spirit of protecting the safety and health of our Nation’s miners, the dollar amount is not the sole concern when reviewing settlements. Rather, the substance of the alleged violations matters too.

Citation
No. 9714863

** **This Section 104(a) citation
involves a now-admitted violation of 30 C.F.R 56.11001. That section, titled
“Safe Access,” provides: “Safe means of access shall be provided and maintained
to all working places.”

The
citation, issued by MSHA Inspector Brandt L. Berryann, provided a detailed and
excellent recounting of the hazard. That hazard was great, with the inspector
stating that a permanently disabling injury was reasonably likely. To his
great credit, Inspector Berryann, took photos of the hazardous condition.
However, the Court is not permitted to see the photos, informative as they would
likely be. The reason for this prohibition is unclear. The only reason the
Court can discern is the “see no evil” approach[2]
or that the

The inspector recounted:

Safe access was not provided to the
transfer chute between conveyors CS and CS located at the Primary Plant. A
miner had accessed the chute for cleaning and maintenance by climbing a step
ladder, egressing the ladder laterally by stepping onto the conveyor CS frame measuring
36-inches from the ladder by 39-inches high which was covered in hardened
earthen material, climbing vertically to the top of the CS conveyor skirt
boards measuring 64-inches high, onto the CS conveyor belt, climbing through an
approximate 2.5- by 2.5-foot diameter access door at the discharge end of the
chute, then climbed vertically up the interior of the chute, exiting through a
removed access panel approximately 4-feet above the conveyor and directly below
the CS conveyor catwalk, where the miner then affixed the provided fall
protection to the CS catwalk mid-railing while standing on a stone step within
the chute, with the upper torso of the miner extending through the exterior of
the chute, and the miner operating a pneumatic chipping hammer inside the chute
to free hardened material within the chute falling to the CS conveyor below
increasing the likelihood of an accident/ injury to occur. This condition
exposed the miner to a slip/ trip/ fall hazard. In the event a miner were to
slip// trip/ fall hazard. In the event a miner were to slip/trip/ fall while
accessing the chute a permanently disabling injury would be expected.

Petition for Civil Penalty at 6. (emphasis added).

To terminate the citation, the inspector recorded the following:

The
miner was removed from the chute with a boomlift, the mine operator developed
and implemented a standard operating procedure for safe access to working at
heights, conducted a toolbox talk with all miners, and conducted task training
on these procedures with the affected miner terminating this citation. Photo
taken. Id. at 7.

Analysis: A model of brevity, the Secretary
offered the following in support of its view that the negligence should be
considered ‘low,’ stating: “Respondent will argue that management had no direct
knowledge of the observed practice, and a man-lift was on site and available
for elevated tasks, indicating the negligence was somewhat lower than
originally evaluated by the inspector.” Motion at 3.

In
the Court’s view, the Secretary has presented paltry support for this egregious
violation. In no way does it provide considerable mitigating information. It
cannot be passed off as low negligence simply on the basis of the claim
that the operator had no ‘direct knowledge’ of the hazardous action. Even
if the knowledge was indirect, it was obvious and there are people known as
foremen to oversee work. Further, the operator only then developed a standard
operating procedure for safe access to working at heights, a serious failure,
contradicting any justification to award ‘low’ negligence. It should not be
overlooked that the inspector had already, generously in the Court’s
estimation, called the negligence ‘moderate,’ meaning there was some mitigation
awarded.

Although, respecting the Commission case law cited below, the settlement must be approved, the Court does not believe that the small penalty of $143.00, an amount tantamount to the minimum penalty under Part 100, is consonant with Congress’ concern that penalties are to be of an amount sufficient to make non-compliance more expensive than compliance.

Citation
No. 9714864

This
citation, invoking 30 C.F.R. § 56.12068, is plain and direct. Titled
“providing: Locking transformer enclosures, it provides in clear language: “Transformer
enclosures shall be kept locked against unauthorized entry.” (emphasis
added)

Issuing Inspector Berryann, recorded in his citation:

An energized stepdown enclosed transformer was not kept locked against unauthorized entry providing 480-VAC to the Powerhouse North Pump Building. The transformer access door handle was provided with a means to lock and secure the transformer, but was not utilized. This condition exposed the miner to a shock/ burn hazard. In the event a miner were to enter the transformer a fatal shock would be expected. Photo taken.

Petition
for Civil Penalty at 8

Even though the Court is not permitted to view the photograph, it still compliments the inspector for his diligent effort to record his observation.

The Secretary announces that this violation is vacated in an exercise of his prosecutorial discretion.

Analysis:

Although the Court recognizes that the Secretary presently has the authority to vacate citations without presenting any reason for such a decision, it is hard to understand this decision to vacate. What is not hard to understand is that a non-utilized handle to lock the transformer enclosure was found and that an unlocked transformer enclosure is not a locked transformer. Confirming that there was in fact a violation, Inspector Berryman informed in terminating the violation, “a keyed lock was installed on the transformer door handle terminating the citation.” Again, to his continued credit, Inspector Berryann took a photo of action reflecting the installation of the keyed lock. Given the very low proposed penalty, at $143.00, and at that barely more than the minimum penalty, the decision to vacate is a mystery.

Citation
No. 9714865

For this citation, Inspector Berryann cited a violation of 30 C.F.R.§56.14025. It applies to machinery, equipment, and tools and, like the other standards mentioned above, it too is understandable to persons of ordinary intelligence, with its clear requirement that “Machinery, equipment, and tools shall not be used beyond the design capacity intended by the manufacturer where such use may create a hazard to persons.”

** **In this instance, the inspector’s
description of the condition and practice recounted:

A Spedecut 3-inch cut-off wheel was
used beyond the design capacity intended by the manufacturer where such use
created a hazard to persons located on a pneumatic die grinder in the black
Craftsman toolbox in the Maintenance Shop. The cut-off wheel was attached to
the die grinder with no installed flange guard as required. The cut-off wheel
was used/ returned in this condition, and held by hand when used increasing
the likelihood of an accident/ injury to occur. This condition exposed the
miner to contact with or being struck with a fragmenting cut-off wheel hazard.
In the event a miner were to come into contact or were struck with a fragmenting
wheel a permanently disabling injury would be expected. Photo taken

Petition for civil penalty at 9

** **The inspector believed that an
accident was reasonably likely to occur and that if it did, it would be
permanently disabling. Accordingly, he listed it as significant and
substantial. The negligence was marked as ‘low’ by the inspector.

To terminate the citation, the Inspector noted:

The cut-off wheel was removed from the die grinder and the miner was given a safety talk terminating this citation. Photo taken. Further, the mine operator was put-on-notice that should the die grinder be observed with an attachment installed requiring a guard, with no guard installed, that this would be considered aggravated conduct constituting more than ordinary negligence.

Analysis:

** **It appears, clearly, that the
inspector had it quite right. Miners should appreciate his perceptive observation
of the hazard the cited condition presented. Norton Abrasives[3],
in an article titled “Cut-Off Wheels and Die Grinders – A Dangerous Combination,”
explains that “the difference between a cut-off tool and a die grinder [is]
[s]imple – cut-off tools come equipped with a guard and proper mounting flanges
designed for cut-off wheels, and the speed is compatible with the cut-off
wheel. … While die grinders may look similar to cut-off tools, they are not.
They are unguarded tools without flanges and should NEVER be used with cut-off
wheels.

** In what the Court views as an unintentional
lack of understanding on the part of the CLR, Mr. Jakubauskas, in his motion
states: “The unguarded cut-off tool was not observed in use**, so an
accurate determination of the hazards present could not be qualified to support
reasonably likely. The miner owned tool was in storage at the time of
inspection, and no visible physical damage to the cutoff wheel was observed,
further lessening the likelihood of an injury.” Motion at 3.

The
remarks cited above from the manufacturer demonstrate that the CLR was
incorrect. That ill-founded assertion was compounded by two more inaccurate
remarks. The establishment of a violation does not require that the condition
be observed in use. Such a prerequisite would be ludicrous. The second
inaccuracy is the CLR citing Am. Aggregates of Michigan, Inc., 42 FMSHRC
570, 576-79 (Aug. 2020) (citing Mechanicsville Concrete, Inc., 18 FMSHRC
877, 879-80 (June 1996) as authority permitting the Secretary with discretion
to modify an extant significant and substantial designation. Those
cases do not stand for that claim. The Court recognizes that CLRs, not being
attorneys, just echo what they are told to say on that score, but just
following orders, repeating what someone else (the Solicitor) directs one to
assert doesn’t make it true.

Accordingly, the CLR improperly asserted his discretion to turn the violation into a non-significant and substantial violation, an assertion contrary to the hazard presented and contrary to current Commission decisional law.

Conclusion

** In spite of all the identified
inadequacies, the motion must be approved. This is because the Court is
obligated, and does, honor Commission case law regarding a judge’s review of
settlement motions. On that account, the Court has considered the Secretary’s
Motion and approves it solely on the basis of the Commission’s decisions
in The American Coal Co., 40 FMSHRC 983 (Aug. 2018) and Rockwell
Mining, LLC, 40 FMSHRC 994 (Aug. 2018) for the standard to be applied by
Commission administrative law judges when reviewing such settlement motions
under the Commission’s interpretation of section 110(k) of the Mine Act. Per
the Commission’s decisions on the scope of a judge’s review authority of
settlements, the “information” presented in this settlement motion is sufficient
for approval.

WHEREFORE, the motion for approval of
settlement is GRANTED.

It is ORDERED that Citation
No. 9714863 be MODIFIED to low negligence and Citation No.
9714865 be MODIFIED to unlikely, and by that redesignation as
unlikely, modified to not significant and substantial. The reduced penalties
are reflected in the table above.

The Respondent
is ORDERED to pay the sum of $429.00 within thirty days of
the final order.[4]
Upon receipt
of payment, this case is DISMISSED.

/s/
William B. Moran

William B. Moran

Administrative Law Judge

Distribution:

CLR Bruce
H. Jakubauskas, U.S. Department of Labor, Mine Safety and Health Administration,
Thornhill Industrial Park, 178 Thorn Hill Road, Suite 100, Warrendale, PA
15086, [email protected]

Michael Peelish, Attorney / Law
Office of Adele L. Abrams, P.C., 4740 Corridor Place, Suite D, Beltsville, MD
20705 [email protected]

[1] Citation
No. 9714866, a paperwork recording violation, remained unchanged, and the
Respondent agreed to accept it as issued and pay the assessed penalty. Motion at 4.

[2] Dating back to the
Muromachi period of Japan, 1338-1573, this expression is
now often used to mean to ignore bad behavior by pretending not to hear or see
it.
https://www.britannica.com/event/Muromachi-period, https://www.macmillandictionary.com/us/dictionary/american/hear-no-evil-see-no-evil-speak-evil

[3] Norton Abrasives
has been in the abrasives business for more than 130 years. https://www.nortonabrasives.com/en-us

[4] Penalties may be paid
electronically at Pay.Gov, a service of the U.S. Department of the Treasury, at
https://www.pay.gov/public/form/start/67564508. Alternatively, send payment (check
or money order) to: U.S. Department of Treasury, Mine Safety and Health
Administration, P.O. Box 790390, St. Louis, MO 63179-0390.

It is vital to include Docket and A.C. Numbers when remitting payments.