FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

Office of the Administrative Law Judges

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Washington, D.C. 20004-1710

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January 23, 2013

SUMMARY DECISION

Before: Judge Gilbert

This case is before me upon a Petition for Assessment of a Civil Penalty under Section 105(d), 30 U.S.C. § 815(d), of the Federal Mine Safety and Health Act of 1977 (the “Act”). In the petition the Secretary of Labor seeks a penalty of $100 for one citation issued pursuant to section 104(a) of the Act, 30 U.S.C. § 814(a), for an alleged violation of 30 C.F.R. § 62.130(a). The Respondent, Tripple H Coal, LLC, contested the citation and the proposed penalty. The case was subsequently assigned to me by Chief Judge Lesnick. The Secretary filed a motion for summary decision, supported by an affidavit from Inspector Sampsel, requesting that the court uphold Citation No. 8323935 as written and impose the proposed penalty of $100.

The citation at issue arises out of an E16 spot check conducted on August 11, 2009 by MSHA Inspector Stanley Sampsel at Auger #1, a surface coal mine located in Campbell, Tennessee. Sampsel Aff. ¶¶ 2-3, Citation No. 8323935. Prior to the issuance of this citation, Sampsel inspected the Auger #1 mine on several occasions, beginning in February 2009. He found that the Salem 1500 B Coal Auger exposed the auger operator and auger helper to noise levels above the permissible level. Sampsel Aff. ¶ 8, S-1. He issued Citation No. 8323635 for noise exposure for the auger helper above the permissible level. The citation was terminated May 27, 2009. He issued Citation No. 8323636, and a 104(b) order, Order No. 8323912, for noise exposure for the auger operator above the permissible level. Sampsel Aff. ¶ 8, 11. On August 11, 2009 he returned to the mine and conducted a full shift noise sample at Auger #1. Sampsel Aff. ¶ 14.

Inspector Sampsel states that on August 11, 2009, as part of his E16 spot check, he conducted a full shift noise sample using properly calibrated dosimeters, which were worn by both the auger operator and the auger helper for the Salem 1500 B Coal Auger. Sampsel Aff. ¶14. The sample demonstrated that the level of noise to which the auger operator and auger helper were exposed exceeded the permissible level. Sampsel Aff. ¶ 15. The exposure level for the auger helper was 150%. Citation No. 8323935. This exceeded the permissible exposure level of 132%, 100% plus error factor. Id. Consequently, Inspector Sampsel issued Citation No. 8323935 (Sampsel Aff. ¶ 16), which is the only citation at issue in this docket.

Citation No. 8323935 states:

Based on the results of an MSHA full shift noise sample taken on 08/11/2009, the Salem 1500 B coal auger helper (371 occupation) working in the 001 active pit, received a permissible exposure level dose of 150%. This exceeds the permissible level of 100% plus error factor (or 132%). This machine was a Salem 1500 B coal auger S/N 25. The [coal auger] helper was wearing a hearing protector. A hearing protector must be worn by the miner, [the coal] auger helper for the Salem 1500 B [C]oal [A]uger machine[,] until exposure is reduced to or below the permissible exposure level.

Citation No. 8323935.

Inspector Sampsel found that the violation was unlikely to result in hearing loss, a permanently disabling injury, to the auger helper, because the auger helper was provided with hearing protection. Sampsel Aff. ¶ 18, 20; Gov. Ex. S-1. He determined that the alleged violation was the result of the operator’s moderate negligence “because the operator knew or should have known that the auger was not in compliance with the noise limitations and for the ongoing noise issue[s] with regard to the Salem 1500 B Coal Auger.” Sampsel Aff. ¶ 19. Sampsel determined that the violation was not a significant and substantial contribution to a mine safety or health hazard because the auger helper had hearing protection. Sampsel Aff. ¶ 17. The violation was abated when Tripple H Coal placed rubber bushings under the operator cab and an acoustic board across the engine compartment. Sampsel Aff. ¶ 22.

In her motion for summary decision the Secretary contends that the Respondent did not deny the alleged violation in its answer and that the record contains no evidence disputing the alleged violation or the inspector’s findings. Sec’y Mot. Summ. Dec. 5-6. In its answer to the penalty petition, the Respondent stated that “I do not feel that the citation is just, nor the proposed assessment fair.” Resp.’s Dec. 03, 2009 Letter to the Comm. After the Respondent failed to timely file a response to the Secretary’s motion for summary decision the court gave the Respondent additional time to respond, extending the filing deadline to April 19, 2012. To date, the Respondent has not filed a responsive motion and the Secretary’s motion for summary decision remains unopposed.

In her motion for summary decision the Secretary avers the following:

1.         Tripple H Coal is a coal mine [,] the products of which enters or affects commerce and is therefore, subject to the Mine Safety and Health Act. (See Affidavit of Stanley Sampsel (Aff. Sampsel) at ¶¶ 3 and 4; Secretary’s Exhibit 3 (S-3); Secretary’s Exhibit 10 (S-10)).

2.         At all relevant times, Tripple H Coal was the owner and operator of Auger #1. (Aff. Sampsel ¶ 2; S-3; S-10; Secretary’s Exhibit 4 (S-4)).

3.         Stanley Sampsel is a properly licensed and trained Mine Safety and Health Inspector. (Aff. Sampsel ¶ 1).

4.         Citation [No.] 8323935 was properly served on Tripple H Coal by MSHA Inspector Sampsel. (Aff. Sampsel ¶ 16; Secretary’s Exhibit 1(S-1)).

5.         On August 11, 2009[,] Inspector Sampsel traveled to Auger #1 to conduct a follow-up inspection for Order [No.] 8323912.

            (Aff. Sampsel ¶ 13; S-1; Secretary’s Exhibit 2 (S-2); S-4).

6.         On August 11, 2009, Inspector Sampsel outfitted the auger operator and the auger helper with dosimeters and conducted a full shift noise sample. (Aff. Sampsel ¶ 14; S-2; S-1; S-4).

7.         The dosimeters used on August 11, 2009 at Auger #1 were properly calibrated. (Aff. Sampsel ¶ 14; S-2; S-1; S-4).

8.         The full shift noise sample showed that the auger helper was exposed to a noise level of 150%. (Aff. Sampsel ¶ 15; S-2; S-4).

9.         The allowable level of noise exposure for the auger helper is 100%. (S-1; S-2).

10.       Exposure to noise above the allowable level causes hearing loss. (Aff. Sampsel ¶ 18; S-1; S-2).

11.       Hearing loss is a permanently disabling injury. (Aff. Sampsel ¶ 18; S-1; S-2).

12.       Tripple H Coal was able to bring the noise level of the auger into compliance through cost effective methods. (Aff. Sampsel ¶ 22).

Sec’y of Labor’s Stat. of Undisputed Mat. Facts.

Commission Rule 67, 29 C.F.R. § 2700.67, states in pertinent part:

(b) Grounds. 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.

(d) Form of opposition. . . . Material facts identified as not in issue by the moving party shall be deemed admitted for purposes of the motion unless controverted by the statement in opposition. If a party does not respond in opposition, summary decision, if appropriate, shall be entered in favor of the moving party.

Since the Respondent has failed to file a motion in opposition to the Secretary’s motion for summary decision, pursuant to Commission Rule 67(d), I deem the material facts of this case, as identified by the Secretary, supra, to be admitted. These facts having been admitted, I find that there is no genuine issue of material fact. I also find that the Secretary is entitled to  summary decision as a matter of law for the reasons that follow.

I.         The Violation

Section 62.130(a) requires an operator to “assure that no miner is exposed during any work shift to noise that exceeds the permissible exposure level.” 30 C.F.R. § 62.130(a). On August 11, 2009, Inspector Sampsel conducted a full shift noise sample while the coal auger helper was working on the Salem 1500 B Coal Auger. The dosimeter showed that his noise exposure was 150%, exceeding the permissible exposure level of 132%. Accordingly, I find that the Secretary has established a violation of the standard.

II.       Negligence

The Secretary contends the violation was the result of the Respondent’s moderate negligence. Sampsel believed that Tripple H Coal knew or should have known that the Salem 1500 B Coal Auger was not in compliance with the standard because of the “ongoing noise issue[s]” related to the auger. Sampsel Aff. ¶ 19. However, he believed that the company’s negligence was mitigated by the fact that it provided the miner with hearing protection. I, too, find the provided hearing protection to be a mitigating factor and that the facts support a finding of moderate negligence.

III.      Number of Persons Affected and Gravity of Injury

Sampsel determined that the violation affected one miner, the auger helper, and exposed him to hearing loss, a permanently disabling injury. However, he believed hearing loss was unlikely to occur because the miner had hearing protection. I concur with his determination and find that if hearing loss did occur such an injury would be permanently disabling.

IV.      Size and Effect of the Penalty on the Operator’s Ability to Continue in Business

Auger #1 is a small coal mine. The mine produced 12,205 tons of coal and 7,850 hours were worked at the mine in 1999. Gov. Ex. S-10. Absent evidence to the contrary, the Commission assumes that a proposed penalty will not affect the operator’s ability to continue in business. Buffalo Mining Co., 2 IBMA 226, 247-48 (Sept. 1973). Further, the penalty of $100, which also reflects a reduction for good faith abatement, is the minimum that the Mine Safety and Health Administration proposes under the regulations set forth at Part 100, 30 C.F.R. § 100.

V.        History of Previous Violations

In the 15 month period preceding the inspection at issue, the company paid civil penalties for four violations, two of which were violations of Section 62.130(a). Gov. Ex. S-3. This is a small history of previous violations.

VI.      Good Faith Abatement

The proposed penalty was reduced for good faith abatement. I find the current penalty to be appropriate and that no further reductions need be taken based on this factor.

There are no genuine issues of material fact and I find that the Secretary is entitled to judgment as a matter of law. ACCORDINGLY, the Secretary’s motion for summary decision is GRANTED. The Respondent is ORDERED to pay a penalty of $100 within 30 days of the date of this decision. Upon receipt of payment this case is DISMISSED.

                                                                                                                /s/ James G. Gilbert

                                                                                                                James G. Gilbert

                                                                                                                Administrative Law Judge

Distribution:(Certified Mail)

Alisha Wyatt-Bullman, U.S. Department of Labor, Office of the Solicitor, 61 Forsyth Street, S.W., Room 7T10, Atlanta, GA 30303

Hansford Hatmaker, Triple H Coal, 100 Memorial Drive, Jacksboro, TN 37757

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