601 New Jersey Avenue, N.W., Suite 9500

Washington, DC 20001

March 5, 2012

DECISION

Appearances:    Jonathan Hoffmeister, Esq., Office of the Solicitor, U.S. Department of  Labor, 61 Forsyth St., S.W., Room 7T10, Atlanta, GA 30303, for Petitioner;

                        W. Randolph Hatch, President, Hatch Enterprises, Inc., P.O. Box 238, Branford,  FL 32008, for Respondent                               

Before:            Judge Rae

            This case is before me on a petition for assessment of civil penalty filed by the Secretary of Labor, acting through the Mine Safety and Health Administration, against Hatch Enterprises, Inc. pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act” or “Act”).  

            Prior to hearing, Petitioner filed a motion for leave to file the petition out of time. In response, Respondent filed an objection thereto. On December 2, 2011, I granted Petitioner’s motion. At issue for hearing was one section 104(d)(1) citation. The proposed penalty is $2000.00. The hearing was held on February 15, 2012 in Gainesville, FL. The parties presented evidence and made arguments. The record was held open for ten days for Hatch to submit financial information which was received on February 22, 2012.

I.         FINDINGS OF FACT AND CONCLUSIONS OF LAW

            Hatch Enterprises, Inc. (“Hatch”) operates a family- run crushed limestone surface mine in Suwannee County, FL. At the time of this inspection, the mine employed three miners who worked one shift per day, five days per week. (Ex. S-7 at pg. 3.)The annual man hours worked was 20,000 to 30,000. (Ex. S-10.)

            On October 20, 2009, the mine was inspected by an MSHA certified inspector who issued a number of citations and an oral imminent danger order. The following violation was adjudicated at hearing.

            The Violation

            The narrative portion of the citation with the later amendment reads as follows:                         

(Ex. S-1.)

            The standard provides: “Protective clothing or equipment and face shields, or goggles shall be worn when welding, cutting, or working with molten metal.”30 C.F.R. §56.15007.

             Billy Handshoe started his career with MSHA as a certified inspector in 2003 and remained until 2008 when health issues prevented him from completing his duties. He then worked for CEMEX as the safety and health supervisor where he conducted approximately 50 to 100 safety audits and accompanied MSHA inspectors on approximately 14 regular inspections in the year he was there. In 2009, he returned to MSHA and worked in the Lexington, KY and Barstow, FL offices until he became the field office supervisor in Knoxville in July 2011. He was also a blaster for 12 years prior to joining MSHA.

            Early in the morning of October 20, 2009, Handshoe met with Mr. Randy Hatch, President of Hatch Enterprises, in the shop area. Shortly after meeting with Hatch, Hatch departed and Dewayne Lambert escorted Inspector Handshoe on the inspection. (Tr. 16, 33-34.) During the health and safety survey he conducted in the shop area, he observed a bench grinder that was not equipped with a guard for which he issued a citation. (Tr. 17.)When Handshoe issued the citation on the bench grinder, Lambert responded by commencing to cut a piece of expanded metal from which to fabricate the guard. As he began to cut the metal with a torch, Handshoe saw that Lambert was not wearing protective safety goggles (“PPE”) and he immediately issued a verbal imminent danger order. (Tr. 17-18.) Handshoe then issued this citation for the failure to wear proper safety equipment. (Tr. 18.)

            Hatch poses several arguments in defense of this citation. They contend, Lambert had only fired up the torch but had not yet begun to cut the metal, therefore the standard was not violated. Further, it asserts that this grinder is 20 years old and had been in service before the passage of the Mine Act. It came without a guard and has never been cited by an MSHA inspector in all the years that it has been in use and therefore the inspector’s citing it was arbitrary and unnecessary. (Tr. 28, 52.) It contends that Handshoe came to the mine with something to prove as a new field office supervisor. According to Hatch and Lambert, Handshoe made some sort of remark that he was going to write every citation he possibly could in order to increase the penalties as much as possible. (Tr. 38, 63.) This cited violation was the result of the inspector threatening to order the grinder be taken out of service if the guard was not constructed immediately. (Tr. 53.) Laboring under the exigency of this situation created the unsafe environment, not Lambert’s actions. (Tr. 55.) There has not been an accident at this mine in over 20 years and MSHA has acted arbitrarily in its assessment of this citation. (Tr. 55, 75-76.) Hatch challenges the characterization of this violation as S&S, an unwarrantable failure or the result of high negligence. Hatch asserts that Lambert has a standing practice of wearing his safety goggles on his hat which he pulls down as soon as he needs them. (Tr. 76-77.) Had the inspector not threatened to shut down production if the condition was not immediately abated, the proper procedures would have been followed. This unsafe practice was essentially at the direction of the inspector, not Hatch. (Tr. 55.) Further, they disagree with a finding that Lambert was a supervisor of the company.

              Despite Hatch’s attempts to establish that Lambert had not yet begun cutting when Handshoe issued this citation, the evidence does not support this. Handshoe observed Lambert cutting the expanded metal without putting on proper protective equipment to shield his eyes from sparks. (Tr. 18-19, 70.) Lambert confirmed in his testimony that he had started cutting the metal, and was not merely lighting the torch, when Handshoe issued his verbal order to cease cutting. (Tr. 57, 70) At the Closeout Conference held between Randy Hatch and Handshoe, Hatch stated that Lambert knew better than to use the torch without PPE. (Tr. 36.) Hatch has had a discussion with him about it. Hatch also told Handshoe that he intended to conference the negligence assessment but not the citation. (Ex. S-9.) The evidence establishes that Lambert was, indeed, in the act of cutting the metal when Handshoe issued the order and the citation. I note also that it would be a reasonable interpretation of the standard to require one to put on the PPE before taking the preparatory step of lighting the torch. Once the torch is lit a flame is present and so too is the danger of sparking.

            As for Hatch’s other arguments as to why the violation was improperly charged, they too fail. Operators are subject to strict liability for a violation of this mandatory standard, thus the fact that other inspectors did not cite the guard is not a defense to the violation. The Respondent’s argument that the grinder was grandfathered in, therefore requiring the guard be constructed immediately was arbitrary and caused this violation is disingenuous. It is the duty of the inspector to enforce the provisions of the Mine Act which was enacted prior to putting this 20 year old grinder into service. Furthermore, the cited condition was a failure to don PPE when using the torch cutter. There was nothing preventing Lambert from putting on his PPE before he started cutting the metal. The Secretary has met her burden of proving the violation was properly cited.

            Significant and Substantial

            A violation is significant and substantial (“S&S”) if the violation is “of such a nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard.” 30 U.S.C. §814(d)(1). There must be “a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). Under the National Gypsum definition, “the Secretary of Labor must prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard –that is, a measure of danger to safety – contributed to by the violations; (3) a reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984)(footnote omitted); see also, Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-104 (5th Cir. 1988), aff’g Austin Power, Inc., 9 FMSHRC 2015, 2021 (De. 1987) (approving Mathies criteria).

            In order to meet the requirements of the third, and most difficult to establish, element of the Mathies formula, the Commission has provided the following guidance:

            We have explained further that the third element of the Mathies formula “requires that the Secretary establish a reasonable likelihood that the hazard contributed to will result in an   event in which there is an injury.” U.S. Steel Mining Co., Inc., 6FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance with the language of section 104(d)(1), it is the contribution of a violation to the cause and effect of a hazard that must be significant and substantial. U.S. Steel Mining Co., Inc. 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co., Inc., 6 FMSHRC 1573- 1574 (July 1984).

              This evaluation is made in consideration of the length of time that the condition in violation existed prior to the citation and the time it would have existed if normal mining operations had continued. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel Mining Co., Inc., 6 FMSHRC at 1574. The question of whether a particular violation is S&S depends upon the surrounding circumstances of the violation. Texasgulf, Inc, 10 FMSHRC 498 (Apr. 1988); Youghioghen & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).

            Handshoe testified that he felt the S&S assessment was appropriate because Lambert acted in reckless disregard for his health and safety in using a cutting torch without eye protection. Based upon his observations, he believed that Lambert had intended to complete the cutting task without PPE.(Tr. 15-16.). To construct the guard, it would have taken Lambert approximately 5 minutes of cutting with the torch. (Tr. 23.)Under these circumstances, it would be highly likely that the sparking of the torch, as well as the glare, could result in a reasonably serious injury to his eyes of a permanently disabling nature. (Tr. 20-21.) He based his opinion on his personal mining experience and as an MSHA inspector, as all mines have torches and welders on site and he is very familiar with this standard. (Tr. 13-15.)

              Hatch asserted that the sparks were more likely to hit Handshoe who was standing approximately five feet away rather than Lambert because Lambert was kneeling over the metal facing the floor. (Tr. 17-18.) I defer to the experience of Handshoe and find the violation was S&S.

              Agency/Unwarrantable Failure

            Handshoe was initially told by Hatch and Lambert that Lambert was a supervisor when he conducted the pre-inspection conference. As he started writing citations, he was then told that Lambert was a lead man, or a rank-and-file miner. Later, Handshoe reviewed his notes and consulted with the district and determined that Lambert was a supervisor. He then amended the citation to a section 104(d) violation charging the company with unwarrantable failure by and through its agent, Lambert. (Tr. 15-16, 26-29 and Ex. S-1.) In order for unwarrantable failure to be imputed to Hatch, it must be established by the Secretary that Lambert was an agent of the operator.

            Section 3(e) of the Act defines “agent” as “[a]ny person charged with responsibility for the operation of all or a part of a coal or other mine or the supervisor of the miners in a coal or other mine.” 30 U.S.C. § 802(e). In considering whether an employee is an operator’s agent, the Commission has relied, not upon the job title or the qualifications of the miner, but upon his function, and whether it is crucial to the mine’s operation and involves a level of responsibility normally delegated to management personnel. Martin Marietta Aggregates, 22 FMSHRC 633, 637-38 (May 2000); REB Enterprises. Inc., 20 FMSHRC at 211; Ambrosia Coal & Constr. Co., 18 FMSHRC 1552, 1560 (Sept. 1996); U.S. Coal Inc., 17 FMSHRC 1684, 1688 (Oct. 1995).

            The Commission in Nelson Quarries, Inc., 31 FMSHRC 318 (Mar. 2009) looked to the Ambrosia Coal query of whether the function of the miner was “crucial to the mine’s operations and involved a level of responsibility normally delegated to management personnel.” Ambrosia Coal at 1560. In Nelson, the Commission upheld the judge’s determination that three employees were agents within the meaning of the Act based upon their functions at the mine. Specifically, the Commission focused upon the fact that all three conducted all of the daily examinations, they supervised and directed the work force assigned to them, they addressed problems the work force brought to them in attempting to abate citations, the work force treated them and regarded them as their supervisors, they held themselves out as foremen, and they were designated as the person in charge of health and safety on the legal identity and start-up and closure reports required to be filed with MSHA.

            Lambert testified that he is the most experienced employee at the mine and can run everything on site. (Tr. 48-49.) Mr. Hatch is at the mine site for only a short time each day so Lambert takes over running the mine on a regular basis.(Tr. 50.) When Mr. Hatch does issue work orders, he gives them to Lambert and Lambert then delegates the tasks to the proper person(s) to carry them out. Lambert is the one the miners come to for their work assignments. (Tr. 66-69.) His title is Production Supervisor but he stated when the Hatches are not there, everything falls to him to run the business. Id. He holds himself out to the other miners as their supervisor and expects them to comply with his orders. (Tr. 66.) The miners come to him first with issues or questions which he will resolve without having to consult with the owners. (Tr. 68-69.) He accompanies the MSHA inspectors on regular inspections and is responsible for ordering whatever work is needed to abate any issued citations.(Tr. 65.)He conducts the pre-shift examination of the loaders and belts, opens up the office and prepares the paperwork. (Tr. 58-59.)When it has been necessary to shut down equipment, he has ordered it himself without direction from the owner.(Tr. 70.)

            Mr. Hatch testified that Lambert is his “right hand man” and referred to him as his supervisor.(Tr. 81.) In fact, when Handshoe commenced his inspection, he asked Hatch who from management would accompany him. Hatch responded that Lambert would and said that he was a supervisor.(Tr 24-25.) Hatch had told Handshoe that he was running for political office at the time of the inspection and was only at the mine for short periods of time. In fact, he was not present for days at a time in some instances. When a member of the Hatch family was not there, Lambert would take charge. (Tr. 29, 81.) Handshoe reviewed prior citations and notes taken at the time and found that Lambert had regularly attended both pre-inspection and close-out conferences and had been the company representative joining the MSHA inspector on the inspections. (Tr. 33.)

            The testimony of Lambert and Hatch leaves no question in my mind that Lambert is an agent by deliberate designation by Hatch as well as by virtue of his daily functions at the mine which involve a level of responsibility normally delegated to management personnel. Lambert’s conduct is properly imputed to Hatch. The issue then is whether the level of negligence rises to the level of unwarrantable failure.

            The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C. § 814(d), and refers to more serious conduct by an operator in connection with a violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at 2001. Unwarrantable failure is characterized by such conduct as "reckless disregard," "intentional misconduct," "indifference," or a "serious lack of reasonable care." Id. at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991) (“R&P”); [see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995)] (approving Commission's unwarrantable failure test).

            Whether conduct is “aggravated” in the context of unwarrantable failure is determined by looking at all the facts and circumstances of each case to see if any aggravating factors exist, such as the length of time that the violation has existed, the extent of the violative condition, whether the operator has been placed on notice that greater efforts are necessary for compliance, the operator’s efforts in abating the violative condition, whether the violation is obvious or poses a high degree of danger, and the operator’s knowledge of the existence of the violation. See Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000) . . . ; Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d on other grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest Material Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quinland Coal, Inc., 10 FMSHRC 705, 709 (June 1988). All of the relevant facts and circumstances of each case must be examined to determine if an actor’s conduct is aggravated, or whether mitigating circumstances exist. Consol, 22 FMSHRC at 353. Because supervisors are held to a high standard of care, another important factor supporting an unwarrantable failure determination is the involvement of a supervisor in the violation. REB., 20 FMSHRC 203, 225 (Mar. 1998).

             Handshoe testified that he assessed the violation as unwarrantable failure because Lambert acted recklessly in cutting with a torch without first donning his PPE. Handshoe was certain that although he had only been cutting for about 10 to 15 seconds when told to stop, Lambert would have finished the cutting job, which would have taken about 5 minutes, without wearing goggles. (Tr. 18-19.) The danger posed by his negligence was obvious as sparks were flying a distance of three to five feet from the torch and Lambert was in a kneeling position facing the torch about 18” away from the flame.(Tr. 18-21.) An injury could have occurred instantaneously had a spark hit him in the eye.(Tr. 22.) Handshoe testified that Hatch had proper PPE on hand in the shop but he felt the fact that Lambert commenced cutting the expanded metal without eye protection with Hatch and Handshoe present indicated to him that this was a common practice. (Tr. 36.) He designated the citation as affecting only Lambert.(Ex. S-1.)

            I have taken cognizance of Respondent’s argument that in order to abate the citation issued for the grinder, Lambert felt compelled to fabricate the guard immediately. There was testimony that normally, this job would have been given to the welder but he was not present at the time. (Tr. 69-70.) The choice for Lambert was either to tag out the grinder or do the cutting himself then and there. I do not give any credence to the contention that Handshoe directed that the guards be fabricated immediately or that he insisted that the grinder be removed from the premises. I also consider the fact that Hatch and Lambert both testified that there has not been an injury resulting in lost workdays at the mine in over 20 years. (Tr. 64, 75-76.) I have also considered the fact that no one else was exposed to the hazard created by the violation and there appear to be no prior citations for similar violations or any indication that the grinder had ever been cited before putting Respondent on notice of a need for greater efforts at compliance. The lack of injuries at the mine for a substantially long period of time seems to bear out the fact that Hatch has made efforts in employing safe work practices.

             I find, with the regard to the aggravating factors enumerated by the Commission, that:(1)the length of time the violation existed was very short – 10-15 seconds;(2) the extent of the violation was minor as it was one discreet action performed by Lambert and affected only him and would have continued for at most, five minutes if not stopped by Handshoe;(3) there are no alleged prior violations or notice of the need for greater compliance with the use of PPE at the mine;(4) the operator had PPE on site which Lambert donned once told to Handshoe to do so;(5) the violation was dangerous to Lambert but not obvious to anyone that he would have commenced cutting without goggles, and; (5) the violation is not of the nature that the operator could have known Lambert would engage in such conduct. As Handshoe described the events, it happened very suddenly and unexpectedly. Otherwise, it would be safe to assume, Handshoe would have forewarned Lambert to use the eye protection if he had any indication that Lambert did not intend to do so. Handshoe testified that for Lambert to have neglected to put on his glasses in the presence of Hatch and an MSHA inspector, it must be a commonly accepted company practice. I find this alone is insufficient evidence to establish a reckless or indifferent pattern of behavior for unwarrantable failure purposes.

            Overall, this violation is dissimilar to those considered by the Commission and its ALJs as examples of unwarrantable failure. It was not a continuing situation that management left unabated which posed a danger to miners such as dismantling pumps allowing water to accumulate in travelways in a mine, failing repeatedly to ensure the use of fall protection when working at heights, knowingly allowing unsafe access to workplaces to exist, failing to provide proper training to new miners, etc. Instead, this was stupid and careless conduct by one person that could not have been predicted or prevented in advance. It does not rise above ordinary negligence. It is a serious violation and it is the result of moderate negligence taking into consideration the mitigating factors discussed herein.

II.        PENALTIES

            The Mine Act delegates the duty of proposing penalties to the Secretary. 30 U.S.C. §§815(a) and 820(a). When an operator challenges the Secretary’s proposed penalties, the Secretary petitions the Commission to assess them. 29 C.F.R. §2700.28. Once petitioned to assess the penalties, the Commission delegates to the administrative law judges the authority to assess civil penalties de novo for violations under the Act. Section 110(i), 30 U.S.C. §820(i). The administrative law judge is required by the Act to consider the following six statutory criteria in her assessment of the appropriate penalty:

            (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).

            The penalty assessment for a particular violation is within the sound discretion of the administrative law judge so long as the six statutory criteria and the deterrent purpose of the Act are given due consideration. Sellersburg Stone Co., 5 FMSHRC 287, 294 (Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984); Cantera Green, 22 FMSHRC 616, 620 (May 2000).

            I have discussed the gravity and negligence involved in the citation above. I have given the additional statutory criteria consideration as well as the deterrent purpose of the Act in assessing the penalties below.

            Respondent has asserted that the proposed penalty of $2000.00 will affect his ability to remain in business. He was provided ten days post-hearing in which to provide financial information to support his position. I have received Ex. R-1 which is a statement of assets and liabilities and a review of expenses for income tax purposes dated December 2011. Although the document is not certified from an accountant, I have considered the information. However, based upon the modification of the citation as set forth above, I find the penalty assessed herein will not affect the Respondent’s ability to remain in business.

            Having considered the six statutory criteria and the stipulated facts, I assess a penalty of $350.00.

III.       ORDER

            Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. §820(i), I have modified the citation to a non-unwarrantable failure and have reduced the negligence to moderate and assess a penalty of $350.00.00. Hatch Enterprises Inc., is ORDERED TO PAY the Secretary of Labor the sum of $350.00 within 30 days of the date of this decision.

                                                                                    /s/ Priscilla M. Rae

                                                                                    Priscilla M. Rae

                                                                                    Administrative Law Judge

Distribution List:

Jonathan J. Hoffmeister, Esq., Office of the Solicitor, U.S. Department of Labor, 61 Forsyth Street, SW, Room 7T10, Atlanta, GA 30303

W. Randolph Hatch, President, Hatch Enterprises, Inc., P.O. Box 238, Branford, FL 32008