FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 New Jersey Avenue, NW, Suite 9500

Washington, DC 20001-2021

Telephone No.: 202-434-9933

Telecopier No.: 202-434-9949

March 16, 2012

    DECISION UPON REMAND

Appearances: M. RosAnn Beaty, US Department of Labor/MSHA, Norton, VA

                          Benjamin D. Chaykin, Esquire, U.S. Department of Labor, Office of the Solicitor,

                          Arlington, Virginia

                          Harry Meador, Mining and Property Specialists, Inc., Big Stone Gap, Virginia

Before: Judge William Moran

            This case is before the Court upon remand from the Commission. The Secretary sought a $100.00 (one hundred dollar) civil penalty and the Court, upholding the violation, assessed a penalty of $1.00 (one dollar) instead. The finding of violation was not questioned by the Commission, but in its Remand the Commission directed the undersigned to further “explain how his application of the statutory penalty criteria to the facts in each case supports his penalty determination.” Remand at 5. As only the penalty was questioned, Mining & Property Specialists, “MAPS,” will be referred to as the Respondent, though it was also a Contestant.

            To refresh one’s recollection about the nature of this single violation, Respondent was cited for violating 30 C.F.R. Section 75.512. That section provides:

                        All electric equipment shall be frequently examined, tested, and

                        properly maintained by a qualified person to assure safe operating

                        conditions. When a potentially dangerous condition is found on

                        electric equipment, such equipment shall be removed from service

                        until such condition is corrected. A record of such examinations

                        shall be kept and made available to an authorized representative

                        of the Secretary and to the miners in such mine.

(emphasis added)

            At the hearing, there were no factual disputes in need of resolution. MAPS conceded that the record book was not at the mine site itself. It contended that all the inspector had to do was to drive to MAPS’ office where it would be made immediately available for the inspector’s review, or that it was willing to send a facsimile of the record book to the mine when requested by the Inspector. The Secretary contended that the requirement that “a record of such examinations shall be kept and made available to an authorized representative of the Secretary and to the miners in such mine” must mean that the records be located at the mine site, not at a nearby, but off mine site, location. The Court found, and the Commission did not take issue with, the determination that MAPS was not in compliance.

            With no issue other than the explanation of the penalty assessed, the Commission identified specific deficiencies that the Court needed to address. While requiring that the Court address each of the statutory criteria, some were particularly identified.

Negligence

            The Commission stated that the “The negligence criterion merits particular consideration,” as it was unable to “ascertain what level of negligence the judge ascribed to MAPS [MINING & PROPERTY SPECIALISTS] and how this affected [the Court’s] penalty determination.” Remand at 4. In particular it was noted that the Court found a good faith, though erroneous, view by MAPS of its obligations under the cited provision, but the Commission directed that the Court particularly address the Secretary’s assertion that the inspector who issued citation “had spoken with MAPS employees at another mine about the requirement that inspection records for the personnel carriers at those mines needed to be maintained at the mine site.” The Commission notes that the Court’s view of this assertion could impact “the issue of whether MAPS had notice of MSHA's position regarding maintenance of inspection records offsite, [and that this] could affect the level of negligence.” Remand at 4.

            Specifically addressing this concern, the Court notes that the issuing Inspector, Richard Whitt, testified that he spoke to MAPS employees about the issue of maintaining the electrical examination records for the electric vehicle on other occasions prior to issuing the citation in issue. However, assuming they occurred, these conversations were at other mines, were only part of several other, unrelated, topics the Inspector discussed with those employees, and resulted in no citation being issued, although the Inspector stated that the absence of records at the mine site existed for those prior occasions. Further, these conversations were not made to any supervisory or management person for MAPS. Respondent called one of its non-supervisory employees as a witness at the hearing and he could not recall such prior conversations having occurred. On this record, addressing the Commission’s concern, it can not be said that MAPS had any prior notice of the Inspector’s interpretation. If anything, assuming that prior warnings occurred, MAPS, had the non-supervisory employees even relayed the Inspector’s alleged comments to management, would have been lulled into believing that the matter was a non-issue, as no citation was issued for any of the prior events, though the circumstances were indistinguishable from the event which prompted the citation involved here to be issued.

            Further, the Respondent, being unsophisticated in these matters, could not have reasonably known nor should have known that its practice was violative. It seemed, reasonably to MAPS that having the records a few miles from the mines it serviced was sufficient. Respondent was mistaken, but for a first time event as here, the Court determines that no negligence was involved. MSHA, as the government conceded, has never issued any policy statement informing the regulated community of its interpretation of “availability” and this was the Respondent’s first violation. As the Court informed Respondent at the hearing, the low penalty it was assessing would be more significant in the event of a repeat violation, now that the Respondent fully understands the obligation under the standard. 

            Accordingly, on this record at least, the Court finds that MAPS did not have any prior notice of the Secretary’s view of the compliance requirements for this standard and it concludes that MAPS’ negligence was minimal, approaching the vanishing point, especially when coupled with the other considerations leading to MAPS’ conclusion that it was sufficient to keep the records at its close-by mine office.

Maps’ efforts to act promptly and in good faith to abate the violation

            In its Remand Order, Commissioner Young noted that the “decision does not discuss at all the operator's efforts to act promptly and in good faith to abate the violation, despite the Act's requirement that he do so. The Commissioner observed that MAPS “offered to have the inspection records faxed to the inspector from its office” and that he considered the operator’s “offer to make them immediately available in this manner might serve as virtually instantaneous abatement.” Remand at n.4.

            Discussing Commissioner Young’s concerns, the Court notes that the Inspector agreed that the MAPS office is about a 15 to 20 minute drive from the mine site. Tr. 64. Respondent’s administrative manager, Doris Dillon, testified that the recordkeeping for the man trips is subcontracted by One Wire, Inc. which provides a certified electrician to do that work. Tr. 91. Those records, in turn, are kept at Respondent’s office and this has been the practice for the past 5 or 6 years. Prior to that the records had been kept in the vehicles themselves, but they were subject to becoming lost or damaged. Tr. 91-92. Ms. Dillon stated that if anyone, such as MSHA, needed to see those records, she could produce them in “just a few minutes.” Tr. 93.  

            Also regarding good faith, Respondent’s employee Christopher Belcher did acknowledge that on August 12^th, the Inspector issued Respondent a citation for not having the electrical book at the mine site. Tr. 85. However, Belcher noted that the records could be made available “real fast” as the Respondent’s office is very close to the mines they service. Tr. 87. He added that Respondent had experienced problems with keeping the records in the vehicles themselves because they would get torn up, lost or damaged and that this prompted them to start keeping them at the R’s office. Tr. 87.

            Upon consideration, the Court concludes that, while incorrect in its belief that compliance could be achieved by having the records kept at the nearby office, the Court agrees that MAPS offered “nearly instantaneous” abatement and that its believe that keeping the records at its office was held in good faith, and was not a ruse. However, apart from its good faith, as the record established, there can be times when an MSHA inspector could be at a mine site where MAPS does work and that it is possible that the MAPS’ office could be closed when such inspections occurred during a evening shift inspection at a mine.

Gravity

In its proposed assessment, MSHA assessed 16 points attributable to gravity. Ten (10) of those points were for likelihood, with that number representing that it was “unlikely” to occur. The severity of any injury factor was given 5 points, a figure representing “lost workdays or restricted duty” would be involved. Finally, for the number of persons affected, one point was assigned, representing that one person would be affected. In the Court’s estimation, the gravity here is minuscule. It is hard to determine why “no likelihood” was not selected, given that there was in fact nothing wrong with the ride and that the only offense was not having the record at the mine site, though it could have been, at least in this instance, transmitted via facsimile immediately. Similarly, how lost workdays could result is a mystery, given the type of violation and the circumstances involved here. It follows that, in the Court’s estimation, that there was no likelihood of any occurrence and that no lost workdays would be involved, that zero points would have been a more appropriate number to apply for both of those factors. Accordingly, no points should have been ascribed to the gravity criterion. Further, one should not lose sight of the fact that this violation was not about equipment in a state of disrepair, nor even about a failure to keep proper records about that equipment. Rather, it was about a “presentation failure” only. MAPS had the records and nearby, but they were not at the mine site and therefore not immediately available at any time of the day or night for MSHA’s review. While the Court does not apply “points” in determining an appropriate penalty, it does evaluate the elements which make up the gravity evaluation. Doing that, it finds that the gravity associated with this violation to be as minimal as its assessment of MAPS’ negligence.

Discussion of the remaining statutory criteria

Appropriateness of penalty to size of business:

Respondent was ascribed four (4) points for this criterion, making it a small operator.

This is not in dispute.

History of previous violations:

Respondent received 0 points, for history of violations.

Effect on operator’s ability to continue in business.

There was, understandably, no contention that the $100. proposed penalty could adversely affect MAPS’ continued business operation.

Conclusion:

Upon further consideration of the penalty criteria, as discussed above, the Court again concludes that a $1.00 (One dollar) penalty is appropriate under these rather unique circumstances and thus it again Orders Mining and Property Specialists to pay the imposed civil penalty.

                                                                                                /s/ William B. Moran

                                                                                                William B. Moran

                                                                                                Administrative Law Judge

Distribution: 

Benjamin D. Chaykin, Esquire, U.S. Department of Labor, Office of the Solicitor,

1100 Wilson Boulevard, 22nd Floor West, Arlington, Virginia 22209-2247

M. RosAnn Beaty, U.S. Department of Labor/MSHA, Post Office Box 560, Norton, Virginia 24273

Harry Meador, Mining and Property Specialists, Inc., 1912 Wildcat Road, Big Stone Gap, Virginia 24219