FEDERAL MINE
SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF
ADMINISTRATIVE LAW JUDGES
1331 Pennsylvania
Ave., NW, Suite 520N
Washington, DC 20004-1710
TELEPHONE: 202-434-9953 / FAX: 202-434-9949
March 19, 2013
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SECRETARY OF LABOR, |
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CIVIL PENALTY PROCEEDING Docket No. PENN 2009-9 A.C. No. 36-08645-163318 Mine: Geronimo Mine ID: 36-08645 |
DECISION
Before: Judge Barbour
The primary issue in this civil penalty proceeding is whether a violation of mandatory safety standard 30 CFR § 75.512[[1]] is “flagrant” within the meaning of section 110(b)(2) of the Federal Mine Safety and Health Act of 1977. (“Mine Act” or “Act”)[2] The Secretary seeks the assessment of a civil penalty of $150,200 for the alleged violation.
The essential facts are not disputed. On November 9, 2007 an inspector from the Mine Safety and Health Administration (“MSHA”) visited the Geronimo Mine of Roxcoal, Inc. (“Rox”) as part of the agency’s investigation of an electrical accident. The accident, which occurred October 30, 2007, seriously injured and disabled one of Rox’s miners. During the course of the investigation the inspector found that a safety switch for a high voltage switch house had been purposefully disabled when it was taped in the “on” position. This meant that mine personnel ordered to conduct electrical repair work inside the switch house could not turn off the power by opening the safety switch prior to beginning work. As a result, they worked in the immediate vicinity of live terminals carrying 7,200 volts of electricity. The inspector found that the condition violated section 75.512, that the violation was a significant and substantial contribution to a mine safety hazard (“S&S violation”) and that the violation was caused by mine management’s unwarrantable failure.[3] Citation No. 7035275. The violation was corrected within an hour when the “switch . . . [was successfully] enabled and tested.” Id.
In proposing a civil penalty, the Secretary found that the violation “was considered to be flagrant.” Petition for Assessment of Civil Penalty, Exhibit A, Narrative Findings. The Secretary further found that Rox exhibited “a reckless or repeated failure to make reasonable efforts to eliminate a known violation of a mandatory . . . safety standard that substantially and proximately caused . . . serious bodily injury.” Id. The “flagrant” nature of the violation meant that it was specially assessed pursuant to 30 C.F.R. § 100.5(e).[4] Rox answered the Secretary’s
civil penalty petition by asserting that it failed to state a claim upon which a penalty could be assessed and that the proposed assessment of $150,200 was “not based upon proper legal and factual findings.” Rox Answer.
The case was assigned to Commission Administrative Law Judge Gary Melick, who stayed it pending the parties’ determination whether they could reach a settlement. Prehearing and Stay Order (October 28, 2009). After the case was assigned to Judge Melick, it was effectively consolidated with Docket No. PENN 2009-51, another case arising out of the October 30, 2007 accident, but one that did not involve an alleged “flagrant” violation. In addition to finding the safety switch disabled, the inspector found that telephone wires were installed to bypass high voltage fuses in the switch house. Therefore, in Docket No. PENN 2009-51, the Secretary sought a civil penalty of $60,000 for a violation of 30 CFR § 75.518, a mandatory safety standard requiring, “Automatic circuit-breaking devices or fuses of the correct type and capacity [to] be installed so as to protect all electric equipment and circuits against short circuit and overloads.” The parties agreed to submit both cases (Docket No. PENN 2009-09 and Docket No. PENN 2009-51) for summary decision based on stipulations and briefs.
In the meantime, Commission Administrative Law Judge Alan Paez issued Stillhouse Mining, LLC., 33 FMSHRC 778 (March 2011) in which he discussed at length the criteria and evidence necessary to determine whether a violation is “flagrant” under the Mine Act. The company appealed Judge Paez’s decision and the Commission granted review. Judge Melick then split PENN 2009-09 from PENN 2009-51. Judge Melick continued the stay in PENN 2009-09 pending the Commission’s decision in Stillhouse. Stay Order (May 6, 2011).[5] It was Judge Melick’s hope that in ruling on Judge Paez’s case the Commission would delineate the criteria and evidence necessary to determine whether a violation is “flagrant” within the meaning of the Act. However, the company withdrew its appeal, and the Commission vacated its order granting review. 34 FMSHRC 1249 (June 6, 2012). This opened the door for a ruling on the parties’ motions for summary decision in Docket No. PENN 2009-09.[6] But, Judge Melick retired before
he could lift the stay and rule on the motions. The case was then reassigned to the Court. Because there is no longer a reason to delay, the stay entered by Judge Melick in Docket No. PENN 2009-09 IS LIFTED, and the Court enters the instant decision.
THE MOTIONS AND THE PARTIES’ ARGUMENTS
ROX
In its motion Rox notes that it promptly abated Citation No. 7035275 by enabling and testing the lid switch. Rox Mot. 1. According to Rox, to be assessed a civil penalty for a flagrant violation, an operator must have “recklessly or repeatedly failed to correct the violation for which the citation has been issued.”Id. 2. Rox states, “At no time did [Rox] fail to correct any alleged violation, including the violation described in Citation No. 7035275.” Id. Therefore, the Court should “dismiss [both] the ‘flagrant’ designation and [the] ‘flagrant’ assessment of Citation No. 7035275.” Id.
In a memorandum supporting the motion Rox amplifies its position. Rox points out that the taping of the safety switch to render it inoperable was done by the mine’s then chief electrician, Donald Sarver. Rox Mem. 1. Citing the stipulations, Rox states that Sarver taped the switch “closed” because he “believed that the lid switch was faulty.” Id. Rox asserts that all citations for violations that were issued to Rox before Citation No. 7035275 were promptly abated and that Rox promptly corrected the violation of section 75.512 cited in Citation No. 7035275. Id. 2. Therefore, “Citation No. 7035275 was issued to [Rox] as a flagrant violation despite the fact that there was no prior uncorrected violation for which a citation had been issued.” Id. 5.
Rox maintains that the question of whether the violation of section 75.512 cited in Citation No.7035275 is “flagrant” does not involve a “complicated issue of statutory construction, but, rather, is a case of reading and applying the . . . plain meaning of the words Congress used” in section 110(b)(2). Rox Mem. 5. In the company’s view, under such a reading, flagrant penalties “may only be assessed for ‘violations under this section,’ that is [s]ection 104(b) [,] upon the ‘reckless or repeated failure’ of an operator ‘to make reasonable efforts’ to correct a violation for which a citation has been issued within the period permitted for its correction.” Id. 6 (emphasis deleted). Rox points out that the first sentence of section 110(b)(1) prescribes a specific penalty (i.e., a daily penalty) for “any operator who fails to correct a violation for which a citation has been issued under section 104(a)” within the period permitted for its correction.[7] Id. Section 110(b)(2) then addresses “violations under this section,” which Rox maintains means violations referred to in the immediately preceding section, that is, violations for which a citation has been issued which an operator has recklessly or repeatedly failed to make a reasonable effort to correct. Id 6-7. Rox states that by placing the “flagrant” language in section 110(b), “Congress was enhancing the civil penalty section of the Act by giving the Secretary the opportunity to assess higher penalties against those ‘bad actor’ operators who receive citations and recklessly and repeatedly fail to make reasonable efforts to correct and eliminate violations for which those citations were issued.” Id. 7. In Rox’s view this is the “most natural reading of the words of the statute.” Id. 8. As a result, “a violation cannot be deemed flagrant until a citation has been issued and the operator has failed, either recklessly or repeatedly, to make reasonable efforts to eliminate the violation for which the citation was issued.” Id. Since Rox promptly worked to correct the violation of Section 75.512 so that the citation was terminated within an hour of its issuance, Rox did not recklessly or repeatedly fail to correct the cited violation, and it is wrong to assess the violation as flagrant. Id. 8. Rox further maintains that the legislative history gives no indication that the intent of section 110(b)(2) is different than the “plain meaning” that Rox advocates. Id. 12. The company makes other arguments in support of its claim (see Id. 10-16), but, its primary contention is that the statutory language is clear and that a flagrant violation only occurs when an operator recklessly and/or repeatedly fails to abate a cited violation.
Rox adds that should it be determined that Rox flagrantly violated section 75.512, the record supports lowering the proposed penalty. According to the company, many things mitigate Rox’s negligence. Rox had a responsible training program, the mine had a good electrical compliance record, there was a lack of forewarning of Donald Sarver’s misconduct, Rox had a safety incentive program and a penalty/disciplinary program for unsafe conduct, and Rox disciplined those responsible for violations, including in this case Sarver and another miner. Rox Resp. 1.
THE SECRETARY
In his cross motion the Secretary asserts that Citation No. 7035275 was properly issued for an S&S violation of section 75.512, that the cited condition resulted from Rox’s reckless disregard and unwarrantable failure to comply with the cited standard and that the citation was properly assessed as “flagrant.” Sec’s Mot. 1. The Secretary states that Rox admits that on October 27, 2007 its then chief electrician and agent, Donald Sarver, taped down the safety lid switch for the switch house, an act that rendered the switch ineffective. Sec’s Mem. 4. Rox also admits the condition violated section 75.512 and that the violation was highly likely to result in a permanently disabling injury to one person. Id. He notes that Rox agrees that the condition was the result of Rox’s unwarrantable failure to comply with the Act and he asserts that Rox’s contention that Sarver’s negligence in taping the safety switch shut does not rise to the level of “reckless disregard” is simply wrong. Rather, “Sarver’s negligence” . . . “clearly show[s]
reckless disregard.” Id. The Secretary points out that reckless disregard can involve a situation where a chief electrician knows that a circuit designed to prevent electrocution has been “intentionally defeated” yet allows the condition to continue. Sec. Mem. 5, citing Karst Robbins Coal Co., 10 FMSHRC 1837 1838 (November 1979). He argues that Sarver deliberately taped down the safety lid switch, that the switch would have interrupted power to the switch house if the safety lid were opened, that Sarver knew or should have known the protective purpose of the safety switch and that he directed miners to work on the high voltage switch house knowing that the safety lid switch was taped down. According to the Secretary, Sarver’s intentional act constitutes a “reckless disregard for the safety of miners at the Geronimo Mine.” Id. 5.
The Secretary further argues that Sarver’s negligence is imputable to Rox. Sec. Mem. 6-7, citing Rochester & Pittsburgh Coal Co., 13 FMSHRC 189,194 (February 1991) (negligent actions of foreman/supervisor/manager may be imputed to the operator.) Moreover, in the Secretary’s view the defense recognized by the Commission in Nacco Mining Co., 3 FMSHRC 848 (April 1981) (agent’s violative conduct exposing only himself to hazard not attributable to operator) does not apply to Rox because the company admits that the acts described in Citation No. 7035275 resulted from the unwarrantable actions of Sarver (see Stip. 33) and the Commission has stated it will not allow the Nacco defense where a “supervisor’s conduct results in an unwarrantable failure . . . regardless of whether that conduct exposes other miners to risk.” Sec. Mem. 7, quoting Capitol Cement Corp, 21 FMSHRC 883, 894-895 (August 1999); aff’d 229 F.3d 1141 (4th Cir. 2000) (unpublished). Moreover, Rox is not entitled to the Nacco defense in any event because Sarver’s conduct exposed other miners to risk and led to one miner being severely injured. Sec. Mem 7-8. Therefore, Sarver’s willful disregard of the Act is imputable to Rox. Id. 8.
The Secretary states that when enacting the law regarding “flagrant” violations, “Congress recognized that more significant penalties are required for operators who know of a condition that violates a mandatory standard and is reasonably expected to cause death or serious injury, yet recklessly fail to make reasonable efforts to eliminate that violation.” Sec. Mem. 8. According to the Secretary, the “key issue is whether . . . Sarver’s actions . . . at the high voltage switch house constituted a reckless failure to make reasonable efforts to eliminate a known violation of the Mine Act.” Id. The Secretary points out that “only the first prong of the statutory definition of “flagrant” – i.e., a reckless failure to make reasonable effort to eliminate a known violation – remains contested.” Id. 9. The Secretary asserts that no interpretation of the term “flagrant violation” is required because Sarver’s “conduct . . . is so plainly reckless.” Id. Knowingly exposing miners to potentially lethal electrical power “constitutes the essence of reckless disregard” and “[b]y assigning miners to work on the equipment after disabling a critical safety feature, Satver recklessly failed to make reasonable effort to eliminate a known violation, and his failure may be imputed to [Rox].”Id. 9-10.
The Secretary also argues that under the “general body of [negligence] law”
Saver’s conduct was “flagrant.” After quoting from the Restatement of Torts, the Secretary states:
Sarver . . . exhibited reckless misconduct[.] Given
his training and experience, he knew or should have
known that disabling the safety lid switch would
create unsafe conditions. In addition, he directed
individuals to work on the high voltage switch
house knowing that the safety features were
disabled. He therefore knew of facts that created a
high degree of risk to another worker, and he acted
with indifference to that risk. He knew that the
potential for serious bodily injury or death was
great, and indeed, bodily harm to another miner
resulted. [Rox] has shown reckless failure to
comply with the . . . Act.
Sec. Mem. 12.
THE FLAGRANT VIOLATION
It bears repeating that section 110(b)(2) sets the parameters for concluding whether a violation is flagrant when it provides that:
[T]he term “flagrant” with respect to a violation
means a reckless or repeated failure to make
reasonable efforts to eliminate a known violation of
a mandatory health or safety standard that substantially
and proximately caused, or reasonably could have been
expected to cause, death or serious bodily injury.
30 U.S.C. §820(b)(2).
As noted above, Judge Paez in Stillhouse analyzed the meaning of section 110(b)(2) within the context of the Act. His decision was detailed, thorough and persuasive, and the Court sees no reason to depart from his conclusions. Judge Paez observed that there are four elements that comprise a flagrant violation:
(1) Reckless or repeated failure to make reasonable
efforts to eliminate
(2) A known violation of a mandatory health or
safety standard
(3)(a) That substantially and proximately caused or
(3)(b) Reasonably could have been expected to cause
(4) Death or serious bodily injury.
33 FMSHRC at 802.
In the case at bar Rox contends and the Secretary does not dispute that the admitted violation of section 75.512 was an isolated incident, as opposed to a repeated occurrence of similar past conduct. Rox Mot. 8-10. The parties also agree that the violation resulted in serious
bodily injury to a miner (Stip. 16), and it is obvious to the Court that the violation could easily have resulted in death.[8] With no allegation of a repeated violation, with agreement that the violation caused a serious bodily injury and with it obvious to the Court that the violation reasonably could have been expected to cause serious injury or death, the issue before the Court is whether Rox committed a “reckless failure to make reasonable efforts to eliminate a known violation of a mandatory . . . safety standard.” 30 U.S.C. § 20(b)(2).
The Court agrees with Judge Paez that “[b]ased on the common meaning of the word . . . an operator is ‘reckless’ for the purposes of a flagrant violation when it consciously or deliberately disregards an unjustifiable risk of harm arising from its failure to make reasonable efforts to eliminate a known violation of a mandatory . . .safety standard.” 33 FMSHRC at 803. It further agrees that the risk of harm is “unjustifiable” if “the burdens of ameliorating the risk are so slight relative to the risk that the operator’s failure to take precautions demonstrates indifference to the risk.” Id. 803-804.
ROX’S FAILURE TO MAKE REASONABLE EFFORTS TO ELIMINATE
A KNOWN VIOLATION
As Judge Paez noted, “If an operator had a legal duty to take certain steps to eliminate the known violation, then the next step in establishing a flagrant violation is to show that the operator’s failure to eliminate the known violation was reckless.” 33 FMSHRC at 805. Applying the reasonably prudent person test – a test frequently used when interpreting the Mine Act – the question for Judge Paez became “whether, in light of the facts and circumstances surrounding the operator’s conduct, a reasonably prudent person would have recognized a legal duty to take certain actions to eliminate a known violation.” 33 FMSHRC at 805 (quoting Phelps Dodge Tyrone, Inc, 30 FMSHRC 646, 656 (August 2008)). Judge Paez ultimately concluded, again, the Court believes correctly:
Based on the . . . plain meaning of [section 110(b)(2),]
a ‘reckless or repeated failure to make reasonable
efforts to eliminate a known violation of a mandatory
. . . safety standard’ occurs when, in light of all the
facts and circumstances surrounding the violation, the
operator does not take the steps a reasonably prudent
operator would have taken to eliminate the known
violation of a mandatory . . . safety standard and
consciously or deliberately disregards an unjustifiable,
reasonably likely risk of death or serious bodily
injury.
33 FMSHRC at 805.
In applying this standard the Court comes to the conclusion that the subject violation is quintessentially flagrant. The parties explain that sometime before October 27, 2007 power was lost to the high voltage switch house. Rox’s agent, Donald Sarver, investigated and found that fuses in the switch house were blown. Because no power at the switch house meant no power to the mining section, Sarver wanted to quickly restore power to the switch house. However, he could not locate replacement fuses. He therefore bypassed the nonworking fuses with telephone wire. Stip. 7. The parties further agree that Sarver then taped down the high voltage side door panel lid switch. Stips 10, 11, 35. Sarver’s purposeful act allowed miners to take off the side panel cover of the high voltage switch house without eliminating the power. Miners who did so were exposed to live terminals of 7,200 volts. Id. 11. The condition existed for at least two production shifts (Id. 9) and when, on October 29, he obtained replacement fuses, Sarver instructed David Roles and Roles’s helper, Burket, to remove the telephone wire Sarver previously installed and to put in the new fuses. Id. 12. Sarver gave the work assignment knowing that the safety lid switch was taped down. Id. After all, he was the person who taped it. Id. 10. Pursuant to Sarver’s instructions, on the midnight shift of October 30, 2007 Roles opened the circuit thinking power was thereby removed to the load side of the switch house. Id. 13. In the meantime Burket removed the side panel of the switch house and began to work on the load side, the side where Roles thought that he had removed the power. Burket accessed the compartment while the safety lid switch was taped down. In so doing he worked sixteen inches from the live terminals. Id.14. Not surprisingly, during the course of working at the switch house Burket was severely shocked. Id. 15.
Sarver’s conduct can only be described as “reckless.” He was the company’s chief electrician. Stip. 20. He received electrical training, electrical refresher training and even additional training provided by the company that focused on the hazards of electrical burns and shock. Stips. 23, 24. It is reasonable to assume that Sarver was fully aware that his action in taping down the safety switch and thus making it impossible to remove power on the load side of the switch house could be expected to cause a miner working at the switch house to be killed or severely injured by “live” current. None the less, despite this knowledge, Sarver knowingly assigned Roles and Burket to the dangerous task. Stip 13. Thus, Sarver who created the violation, who knew of the risk of harm to others from what he had done, deliberately disregarded the risk and purposefully ordered miners (Roles and Burket) into a situation where serious injury or death was reasonably likely. By any measure, Sarver was “reckless.”
SARVER’S FAILURE TO MAKE REASONABLE
EFFORTS TO
ELIMINATE THE VIOLATION
Moreover, Sarver, after creating the violation, failed to do anything to undo that which he had done or to ameliorate the hazard he created. As Judge Paez noted, an operator commits a “failure to make reasonable efforts to eliminate a known violation of a mandatory health or safety standard when, in light of all the facts and circumstances, it does not take the steps a reasonably prudent person would have taken to correct the violation.” 33 FMSHRC at 805. Donald Sarver as Rox’s agent acted or failed to act for Rox. Stip. 4, 5. As found above, he purposefully created the violation by taping down the lid switch (Stip 10) and directing Roles and Burket to install new fuses in the switch house. Id. 12. The Court assumes that Sarver knew or had reason to know that to accomplish the task the miners might well be exposed to live terminals of 7,200 volts. Stip 14. This is more than a reasonable assumption given Sarver’s purposeful disabling of the lid switch, his knowledge of electricity and the task Sarver knowingly assigned to the miners after he disabled the switch. Despite the impending danger, Sarver, and therefore Rox, did nothing. Sarver did not return the switch to a functioning state prior to assigning the miners their task, he did not assign another miner to correct the condition, he did not tell Roles and Burket what he had done, and he did not otherwise warn them of the danger. He did not act as a reasonably prudent person would. He did not act as even a minimally prudent person would. He did not act at all. In other words, Sarver, and through him, Rox, deliberately disregarded a reasonably likely risk of serious injury or death created by a condition that Sarver, and therefore Rox, brought about. If the violation caused by Sarver when he purposefully disabled the safety switch and sent miners to work in the immediate vicinity of the resulting hazard is not “flagrant,” the Court does not know what is.
ROX’S FAILURE TO ABATE ARGUMENT
Rox’s argument that by locating the “flagrant” provision in section 110(b) Congress intended the provision only to apply to previously cited, unabated violations is one plausible way to read section 110(b), but ultimately not the most persuasive way. Judge Paez considered the same question. He found that the plain text of section 110(b)(2) in which the adjective “known” is the only modifier of the noun “violation” does not require that the allegedly flagrant violation be previously cited by MSHA, that it is enough if an agent of the company “knew or had reason to know” of the alleged violation. 33 FMSHRC at 806-807. Further, he stated, “Given that Congress expressly omitted the requirement that section 110(b) involve a cited violation, the known violation at issue in a flagrant case need not have been previously cited by MSHA at the time the operator recklessly failed to eliminate it.” 33 FMSHRC at 807. Judge Paez observed that while section 110(b)(1) of the Act specifically applies to “a violation for which a citation has been issued . . . within the period permitted for its correction” (30 U.S.C. §820(b)(1), the phrase is not included in section 110(b)(2). In Judge Paez’s view, “A court should presume that when Congress includes specific language in one section of a statute but not in another section, it meant to do so.” 33 FMSHRC at 807 (quoting Keene Corp. v. United States, 508 U.S. 200, 208 (1993). Therefore, because unlike section 110(b)(1), section 110(b)(2) does not refer to a prior cited violation, a violation need not have been previously cited for a violation to be flagrant. 33 FMSHRC at 807.
The Court agrees. Like Judge Paez, the Court is not persuaded by Rox’s argument that the words “violations under this section” in section 110(b)(2) refer only to previously issued violations that the operator “recklessly” or “repeatedly” failed to make “reasonable efforts” to abate. Rox Mem. 6-7 (quoting 30 U.S.C. §820(b)(2)). The Court concludes that the words “violations under this section” logically can be interpreted in different ways, the reference to violations issued which an operator has recklessly or repeatedly failed to make a reasonable effort to correct being but one. The phrase equally can refer, as stated in section 110(a)(1), to any violation “for which a citation has been issued under section 104(a).” 30 U.S.C. §820(a)(1). And indeed, when the purpose of the “flagrant” provision is considered – to “increase the maximum penalty for flagrant violations of mine safety regulations” (Presidential Statement on
Signing the Mine Improvement and New Emergency Response Act of 2006, 2006 U.S.C.C.A.N. S27 (June 15, 2006)) – interpreting section 110(b)(2) to apply to the violation of “any mandatory health or safety standard” or of the Act (30 U.S.C. § 814(a)) effectuates the purpose more completely than restricting section 110(b)(2) to situations in which an operator has recklessly or repeatedly failed to correct a previously cited violation.[9]
Having rejected Rox’s argument that because the “flagrant” provision is placed in section 110(b) Congress meant to penalize only the “‘bad actor’” operators who receive citations and recklessly or repeatedly fail to make reasonable efforts to correct and eliminate the violations for
which those citations were issued” (Rox Mem.7), the Court concludes, as stated above, that the stipulated facts easily fit within the language of the “flagrant” provision, and the Court finds that Sarver recklessly failed to make reasonable efforts to eliminate a known violation that substantially and proximately caused and reasonably could have been expected to cause a serious injury. 30 U.S.C. § 820(b)(2). For this reason the Court finds that the violation of section 75.512 cited in Citation No. 7035275 was “flagrant” within the meaning of section 110(b)(2) of the Act.
THE CIVIL PENALTY
In arriving at his $150,200 penalty proposal, the Secretary finds that the violation was “serious” and that it was caused by the company’s “reckless disregard.” Petition for Assessment of Civil Penalty, Exhibit A, Narrative Findings for a Special Assessment. When discussing the company’s liability for the penalty the Secretary makes much of the fact that Rox is not entitled to a Nacco type defense (Sec Mem. 5-8 (referencing Nacco Mining Co., 3 FMSHRC 848 (April 1981); Capitol Cement Corp., 21 FMSHRC 883, 8940895 (Aug. 1999), aff’d, 229 F.3d 1141 (4th Cir. 2000) (unpublished))[[10]], and while the Court agrees with the Secretary that under Nacco and its progeny Rox cannot be relieved of liability for the results of Sarver’s conduct, the Court views the application of Nacco as inapposite to the assessment of a civil penalty for the flagrant violation. Rox in fact acknowledges that it is not seeking a traditional Nacco defense.
Rox states:
[Rox] is not asserting that . . . Sarver’s conduct is
not imputable to [Rox.] [Rox] is not asserting the
‘Nacco’ defense. . . . [Rox] believes that
mitigating circumstances exist which should cause
[the Court] to not paint [Rox] with exactly the same
brush as . . . Sarver but rather, considering the
mitigating circumstances[,] . . . [the judge should]
reduce the [penalty] against [Rox].
Rox Mem. Supp. Opp. 11.
Here, Rox and the Court are in accord. When assessing a civil penalty, the Act requires the Court, inter alia, “to consider whether the operator was negligent.” 30 U.S.C. §820(i). This means that the Court must consider all relevant facts and circumstances including those that mitigate the operator’s negligence. See Excel Mining, LLC v. Dept. of Labor, et al. Consolidation Coal Co. 22 FMSHRC 340, 353 (Mar. 2000), No. 12-1138, slip op. 3 (D.C. Cir. March 15, 2013). Thus, the Court must take account not only of the imputed actions of the operator’s agent but also those actions of the company that bear on the company’s duty of care. The stipulated facts and Rox’s unrefuted assertions indicate that the company was in fact “blind sided” by Sarver’s conduct. Rox Resp., 11. They also indicate that the company did much that was right to meet the obligations imposed on it by the Act. It provided all training required by MSHA. Stip. 23. It provided additional training beyond that required, including training on the hazards of electrical shock. Stip. 24. It conducted weekly and monthly safety meetings. Stips. 26, 27. It instituted a safety incentive program at all of its mines with the goal of totally preventing lost time accidents.[11] Stip. 46. It implemented a safety policy in 2006 that delineated certain unsafe acts which included a penalty/disciplinary structure for miners whose actions were deemed unsafe. Stip.47 Between May 20, 2005 and the accident to Burket on October 29, 2007, only five S&S electrical violations were issued by MSHA at the Geronimo mine and none involved performing electrical work with equipment energized, the situation that led to Burket’s injury. Stip. 50. In fact, in the two years before Citation 7035275 was issued no violations of section 75.512 were cited at the Geronimo Mine. Stip. 51. In addition to these factors, there is no indication that Sarver was improperly credentialed (see Stip 4) and there is every indication that Rox justifiably believed Sarver was “a competent and conscientious electrician” worthy of the trust Rox and Rox’s miners placed in him. See Stip. 20. The Court concludes that these factors clearly mitigate the company’s negligence, as does the fact that Sarver’s conduct was idiosyncratic, unpredictable, and contrary to Rox’s policies. They will be considered when assessing an appropriate civil penalty.[12] See generally Western Fuels-Utah, Inc., FMSHRC 256-260-261 (Mar.1988).
CIVIL PENALTY CRITERIA
HISTORY OF PREVIOUS VIOLATIONS
The parties stipulated that in 2006, Rox received 41 citations for violations of the Mine Act and between January 1, 2007 to October 30, 2007, Rox received 80 citations. Stip. 43. As previously noted, in the two years prior to the accident it received no citations for violations of section 75.512. Stip. 51. Overall, and especially in view of the Secretary’s determination that Rox’s history merited two penalty points when the Secretary computed the special assessment in this case (see Special Assessment Narrative Form.), the Court concludes the company has a small history of previous violations.
SIZE OF BUSINESS
The parties agreed that in 2006, Rox produced 271,454 tons of coal and in the following year production increased to 292,352 tons. Stip. 44. Given the fact that the Secretary assigned 10 penalty points to the operator based on its production (see Special Assessment Narrative Form), the Court concludes that Rox is one of the larger of the country’s medium sized operators.
NEGLIGENCE
As stated earlier, in evaluating the operator’s negligence for the purpose of assessing a civil penalty, the Court has taken into account not only the imputed actions of the operator’s agent, but also the actions of the company bearing on its duty of care. In recognizing that the company’s efforts to meet its obligations under the Act constitute mitigating circumstances that should be taken into account in determining the civil penalty, the Court acknowledges the realities of human conduct. Despite proper training and reasonable precautions, an operator’s agent may intentionally, unexpectedly and negligently put himself and others at risk by violating the most elementary safety standards. When as here, the record reveals that the operator has taken all reasonable measures to prevent that conduct and has no forewarning it may occur, it does not further the purpose of the Act to assess the operator a penalty near the maximum the law allows.
ABILITY TO CONTINUE IN BUSINESS
The parties stipulated that the proposed penalty will not affect Rox’s ability to continue in business. Stip. 45.
THE GRAVITY OF THE VIOLATION
The violation, which lead to Burket’s
injury which easily could have killed him and injured others, was extremely
serious.
GOOD FAITH ABATEMENT
Rox abated the violation within an hour. Citation No. 7035275. The Secretary recognized that the company acted in good faith and reduced the proposed assessment accordingly. See Special Assessment Narrative Form. The Court likewise recognizes the good faith of Rox in attempting to achieve rapid compliance.
CIVIL PENALTY ASSESSMENT AND ORDER
In view of its findings related to the statutory civil penalty criteria, and giving weight to the mitigating circumstances discussed above, the Court assesses Rox a civil penalty of $110,000.00 for the violation of section 75.512 set forth in Citation No. 7035275.
Within 40 days of the date of this
decision Rox IS ORDERED to pay a
civil penalty of $110,000 for the violation.[13]
Upon payment of the penalty, this
proceeding is DISMISSED.
/s/
David F. Barbour
Administrative Law Judge
David F. Barbour
Distribution:
(Certified Mail)
Linda M. Henry, Esq., U.S. Department of
Labor, Suite 630E, The Curtis Center, 170 S. Independence Mall West,
Philadelphia, PA 19106
Vincent J. Barbera, Esq.; Melanie R. Barbera,
Esq., Barbera, Clapper, Beener, Rullo & Melvin, LLP, 146 West Main St.,
Post Office Box 775, Somerset, PA
15501-0775
/db
[1] Mandatory safety standard section 75.512 states in pertinent part:
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.
[2] Section 110(b)(2) of the Mine Act states:
Violations that are deemed to be flagrant
under section 110(b)(2) of the Mine Act
may be assessed a civil penalty of not more
than $220,000. For the purposes of the
preceding sentence, the term “flagrant”
with respect to a violation means a
reckless or repeated failure to make
reasonable efforts to eliminate a known
violation of a mandatory health or safety
standard that substantially and proximately
caused or reasonably could have been
expected to cause, death or serious bodily
injury.
30 U.S.C. § 820(b)(2).
[3] The inspector concluded that “a [c]ertified person knew of [the taped switch] . . . and condoned the practice of working in close proximity [to] live energized high voltage.” Citation No. 7035275 at 2.
[4] Section 100.5(e) states:
Violations that are deemed to be flagrant
under section 110(b)(2) of the Mine Act
may be assessed a civil penalty of not more
than $[242,000]. For purposes of this section,
a flagrant violation means “a reckless or
repeated failure to make reasonable efforts to
eliminate a known violation of a mandatory
health or safety standard that substantially
and proximately caused, or reasonably
could have been expected to cause, death or
serious bodily injury.”
30 C.F.R. § 100.5(e)
In January, 2013, pursuant to the Inflation Adjustment Act, MSHA increased the maximum penalty that could be assessed under section 110(b)(2) to $242,000.
[5] A short time later, Judge Melick issued a summary decision in Docket No. PENN 2009-51, finding that Rox violated section 75.518. Judge Melick assessed the company a civil penalty of $50,000 for the violation. Roxcoal, Inc., May 17, 2011 (unpublished).
[6] Rox styled its motion as one for “partial” summary decision because initially the company challenged only the citation’s “flagrant” designation and the “flagrant” assessment. Rox Mot. 2. However, because the company and the Secretary filed stipulations that allow all aspects of PENN 2009-9 to be decided, Rox’s motion for partial summary decision will be treated by the Court as a motion for summary decision, and the Court will decide all issues in the case.
[7] Section 110(b)(1) of the Act states in part:
Any operator who fails to correct a violation for which a citation has been issued under section 104(a) within the period permitted for its correction may be assessed a civil penalty of not more than $7,500 for each day during which such failure or violation continues. 30 U.S.C. § 820 (b)(1)
[8] Indeed, the injured miner, Chad Burket, was very lucky he was not killed. Rox’s somewhat rosy description of the accident – (that Burket “received an electrical shock, causing him . . . two small wounds and [to] be taken to the hospital and to be off work for several weeks” Rox Mem. Supp. Opp. 2) – does not mask the fact that Burket was shocked while working immediately adjacent to live circuits carrying 7,2000 volts of electricity. Stip 11.
[9] The Court is mindful that because section 110(b)(2) plausibly can be read in different ways, accepting the Secretary’s reasonable interpretation of section 110(b)(2) as a “permissible construction of the statute” is a legally legitimate result. Chevron U.S.A., Inc. v. National Resources Defense Council, Inc., 467 U.S. 837(1984); see too Auer v. Robbins, 519 U.S. 452, 457 (1997); Sec’y of Labor v. Excel Mining, LLC, 334 F.3d 1, 6 (D.C. Cir. 2003).
[10] As the Court previously noted, in Nacco the Commission held that the negligent conduct of a supervisor will not be imputed to an operator if: (1) the operator has taken reasonable steps to avoid the particular class of accident involved in the violation; and (2) the supervisor’s erring conduct is unforeseeable and exposes only himself to risk. 3 FMSHRC at 851. The Commission later ruled out the Nacco defense in instances where the supervisor’s conduct results in an unwarrantable violation under section 104(d) of the Act (30 U.S.C. §814(d)) regardless of whether the conduct exposes other miners to risk. See Sec. Mem.7-8 (referencing Capitol Cement, 21 FMSHRC at 894-895).
[11] The miners at the Geronimo Mine met the goal for at least 15 months before the accident that injured Burket. Stip. 46.
[12] The Court also recognizes that the company discharged Sarver and disciplined Roles thereby putting its agents on notice of its “zero tolerance” policy for similar misconduct. Stips. 48, 49.
[13] Payment should be sent to: Mine Safety and Health Administration, U.S. Department of labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. Rox should include on the check the docket number and the assessment control number noted in the caption on the first page of this decision.