Federal Mine Safety and Health Review Commission

721 19^th St., Suite 443

Denver, CO 80202-2500

Office: (303) 844-5266/Fax: (303) 844-5268

February 21, 2012

DECISION

Appearances:  Sarah T. White, Esq., Office of the Solicitor, U.S. Department of Labor, Denver,  Colorado, on behalf of the Petitioner;

                       Thomas Mattics, President, Eureka Rock, LLC, Ashfork, Arizona, on behalf of  the Respondent.

Before:                        Judge Miller

This case is before me upon a petition for civil penalty filed by the Secretary of Labor pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (the “Act”), charging Eureka Rock, LLC, (“Eureka”) with multiple violations of 30 C.F.R. § 50.30(a). The Secretary proposes a total civil penalty of $448.00 for the alleged violations. A hearing was held in Phoenix, Arizona on January 24, 2012.

I. BACKGROUND

Eureka operates a quarry, which includes a crushing and screening operation in Prescott Valley, Arizona. The mine produces sized volcanic rock that is sold in the local region as landscaping stone, road base, and pipe bedding. Thomas Mattics, owner of Eureka Rock, operates the mine on his own, according to his testimony, and does not employ any additional workers. Mattics relies on his sole operator/owner status as justification for not complying with the requirements of 30 C.F.R. § 50.30(a). Mattics however, does not deny that he owns and operates the quarry and that trucks arrive at the mine to be loaded by Mattics. I find that Eureka is a mine as defined by the Act and is subject to the jurisdiction of the Commission.

II. VIOLATIONS

At the outset, I note that, within the last five years, the Secretary issued multiple citations to Eureka Rock for failure to comply with 30 C.F.R. § 50.30(a). Some of the early citations were paid, others were contested and some of those contested by Eureka, were upheld and affirmed by ALJ Melick and a civil penalty was assessed against Eureka. Eureka Rock, LLC, 32 FMSHRC 922 (July 2010) (ALJ). The general issue before me is whether Eureka Rock violated the cited standards as charged in this instance and, if so, the appropriate civil penalty for those violations.

a.         Fact of Violation - Citation Nos. 6453252, 6453253, 6453254, and 6453255

Oscar Montano, MSHA Inspector, has been a mine inspector for more than six years and worked in the mining industry for sixteen years prior to joining MSHA. On June 29, 2009, Inspector Montano visited the Eureka Rock mine to conduct a routine inspection. While on site, Inspector Montano issued Citation Nos. 6453252, 6453253, 6453254, and 6453255 for alleged violations of 30 C.F.R. § 50.30(a). Citation No. 6453252 states, in pertinent part, that “[t]he operator failed to report on MSHA Form 7000-2 the correct total hours worked for the second quarter of 2008. The operator believes that he is not by definition an employee since he receives no salary/wages from this one person operation therefore, reports zero hours worked.” Citation Nos. 6453253, 6453254, and 6453255 are identical in all respects to Citation No. 6453252, but address the third quarter of 2008, fourth quarter of 2008, and first quarter of 2009, respectively.

In each of the citations the Secretary alleges that there was no likelihood of an injury or illness, that no lost workdays would be suffered, that the violations were non significant and substantial, and that the violations were the result of the operator’s high level of negligence. Section 50.30(a) of the Secretary’s regulations reads as follows:

Each 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 the MSHA Office of Injury and Employment Information, P.O. Box 25367, Denver Federal Center, Denver, Colo. 80225, within 15 days after the end of each calendar quarter. These forms may be obtained from the MSHA District Office. Each operator shall retain an operator's copy at the mine office nearest the mine for 5 years after the submission date.

30 C.F.R. § 50.30(a).

The facts of this case are not in dispute. The Respondent does not contest that he failed to record the hours worked at the mine on MSHA form 7000-2 (the “form’). Instead, Mattics, the owner and operator of the mine, contends that he is the only person who works at the mine and he is not required to record the hours he works on the form since he is not an employee. He argues that the back of the form refers only to “employees” and, since he is not an employee, but rather is the owner and sole operator of the mine, he is not required to record any hours worked.

At hearing, Mattics agreed that the issue before me is identical to that which was addressed by ALJ Melick in his June, 2010 decision. Nevertheless, he asserts that he has not paid, and will not pay, any penalty assessed for these violations. Mattics has a history of refusing to properly fill out MSHA Form 7000-2, and, as a result, has received a number of “failure to abate” orders. He continues to assert that MSHA has no jurisdiction at his mine and that he is not required to fill out the section of the form which asks for the number of hours worked. Conversely, the Secretary argues that Mr. Mattics is an employee and must include his hours on the form.

Mattics asserts that “you have to have some employees working before there is jurisdiction.” (Tr. 47) I find the Respondent’s arguments to be without merit. Section 50.30(a) requires mine operators to complete MSHA Form 7000-2 in accordance with the instructions set forth in Section 50.30-1. As pertinent to this analysis, Section 50.30-1 requires that mine operators fill out the relevant portion of MSHA Form 7000-2 with the “total hours worked by all employees during the quarter covered.” 30 C.F.R. § 50.30-1(g)(3). ALJ Melick, in addressing the Secretary’s identical argument in his own case, stated the following:

The Secretary notes . . . that the term “employees” is defined in another subsection of the cited standard as including “all classes of employees (supervisory, professional, technical, proprietors, owners, operators, partners, and service personnel) on your payroll full or part time.” See 30 C.F.R. § 50.30-1(g)(2). The Secretary argues therefore that under the rules of regulatory construction, that definition applies as well to the term “employees” used in 30 C.F.R §50.30-1(g)(3)[.] The Secretary is clearly correct in this regard. Administrative regulations are generally subject to the same principles of construction as statutes. Miller v. United States, 294 U.S. 435, 442 (1935). In analyzing the rules of statutory construction, the Supreme Court of the United States has stated that the established canon of construction is that similar language contained within the same section of a statute must be accorded a consistent meaning”. Nat’l Credit Union Admin. v. First Nat’l Bank & Trust Co., 522 U.S. 479, 501 (1998). The Supreme Court has further held that “there is a natural presumption that identical words used in different parts of the same acts are intended to have the same meaning. Atlantic Cleaners & Dryers, Inc. v United States, 286 U.S. 427 (1932). Furthermore, in Morton Int’l Inc., 18 FMSHRC 533 (Apr 1996), this Commission held that “regulations should be read as a whole giving comprehensive, harmonious meaning to all provisions”. Id at 536.

Therefore, as a matter of law, the definition of the term “employees” found in 30 C.F.R § 50.30- 1(g)(2) is applicable to the term “employees” found in 30C.F.R. § 50.30-1(g)(3)[.]

Eureka Rock, LLC, 32 FMSHRC at 924. I find ALJ Melick’s analysis of the fact of violation issue in his case to be entirely consistent with my own analysis in the instant matter. Consequently, I also find that Mr. Mattics, as owner and sole operator of the mine, falls within the definition of “employee” as contemplated by Section 50.30-1, and, therefore, in accordance with the cited standard, is required to report his own hours on MSHA Form 7000-2. Given that Mr. Mattics does not dispute that he failed to record his hours on the form, and that each of the subject quarterly forms contains a zero in the space where Mr. Mattics should have reported his hours worked, Sec’y Exs. 8, 9, 10, and 11, I find that the Secretary has proven a violation of the cited standard.

b.         Negligence

The Secretary alleges that the violations were the result of the Respondent’s high level of negligence. The Secretary asserts that Eureka Rock’s previous and repeated citations for failure to comply with 30 C.F.R. § 50.30(a) indicates a high level of negligence. Indeed, Eureka Rock does not dispute the repeat nature of these violations. While Inspector Montano issued the subject violations in June 2009, before ALJ Melick delivered his July 2010 decision ruling that Eureka Rock’s owner operator hours must be recorded, a look at the history of the Eureka mine consistently demonstrates violations of the quarterly reporting requirements as far back as 2001. In addition, a number of those citations were not terminated and, as a consequence, Eureka was issued multiple failure to abate orders. Sec’y Ex. 2. Moreover, in this case, Eureka refused to abate the violations and was issued a failure to abate order for each citation issued. Accordingly, I agree with the Secretary and find that the subject violations were properly assigned a high level of negligence.

IV. PENALTY

The principles governing the authority of Commission administrative law judge to assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i) of the Mine Act delegates to the Commission and its judges the authority to assess all civil penalties provided in [the] Act. 30 U.S.C. § 820(i). The Act requires that in assessing civil monetary penalties, the Commission [ALJ] shall consider the six statutory penalty criteria:

[1] the operator’s history of previous violations, [2] the appropriateness of such penalty to the size of the business of the operator charged, [3] whether the operator was negligent, [4] the effect on the operator’s ability to continue in business, [5] the gravity of the violation, and [6] the demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification of a violation.

30 U.S.C. 820(i).

            Eureka has a long history of Section 50.30(a) violations and has received multiple failure to abate orders related to such. I have addressed the negligence and agree that it was properly assessed at high. However, given Eureka Rock’s small size, and the low gravity of the violations, I find that a civil penalty of $200.00 for each of the citations is appropriate.

V. ORDER

Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), I assess a penalty of $200.00 each for Citation Nos. 6453252, 6453253, 6453254, and 6453255. Eureka Rock is hereby ORDERED to pay the Secretary of Labor the sum of $800.00 within 30 days of the date of this decision.

                                                                                    /s/ Margaret Miller

Margaret A. Miller

Administrative Law Judge

Distribution: (U.S. First Class Mail)

Sarah T. White, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800, Denver, Colorado, 80202-5708

Thomas Mattics, Eureka Rock, LLC, 4525 North Cinnabar Dr., Prescott, AZ 86320