FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
303-844-5267/FAX
303-844-5268
June 20, 2012
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SECRETARY OF LABOR, MAGIC VALLEY SAND & GRAVEL, INC., |
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CIVIL PENALTY PROCEEDING
Docket No. WEST 2009-766-M A.C. No. 10-01836-181178 Dollar Dredge |
DECISION GRANTING RESPONDENT’S MOTION FOR SUMMARY DECISION
This case
is before me upon a petition for assessment of civil penalty under section
105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (the “Mine Act”). It involves a single citation issued to Magic
Valley Sand & Gravel, Inc. (“Magic Valley”) at its Dollar Dredge for an
alleged violation of 30 C.F.R. § 56.15002.
Citation No. 6436668 was issued under section 104(d)(1) of the Mine
Act. Each party filed a motion for
summary decision and filed an opposition to the other party’s motion. The only issue to be resolved is the amount
of the civil penalty to be assessed. The
parties disagree as to what effect
I. JOINT STIPULATIONS OF FACT
The parties entered into detailed stipulations of fact for the purpose of summary decision. The relevant stipulations are set forth below.
1. This case involves a sand and gravel surface mine known as Dollar Dredge (“the Mine”), which is owned and operated by Magic Valley Sand & Gravel.
2. The Mine, MSHA ID No. 10-01836, is subject to the Federal Mine Safety and Health Act of 1977 (the “Mine Act”), as amended.
3. The Administrative Law Judge has jurisdiction over these proceedings, pursuant to Section 105 of the Mine Act.
4.
5.
6. Randall Adamson (“Adamson”) whose signature appears in Block 22 of the citation at issue in this proceeding was acting in his official capacity as an authorized representative of the Secretary of Labor during the time of the inspection and when the citation was issued.
7.
8. Government Exhibit 1 reflects the history of the mine for the fifteen months prior to the date of the citation.
9. This case involves a Section 104(d)(1) citation issued November 24, 2008, after an accident occurred at the Mine on November 21, 2008. Two citations were issued; one involved working under a suspended load (alleging a violation of C.F.R. § 56.16009) and the other, involved in this matter, alleged a violation of 30 C.F.R. § 56.15002. The suspended load violation was paid and is not part of any proceeding before the Federal Mine Safety and Health Review Commission.
10. On November 22, 2008, inspector Adamson arrived at the Mine and met with James McGill (“McGill”), president of the Mine, to perform an accident investigation.
11. The day before, on Friday, November 21, 2008 at approximately 5:15 PM, miner Steven Heins (“Heins”) was struck in the head by a loose cross member during the construction of a new screen tower. For most of the workday, the mine’s employees had been working on setting up the new screen tower. The four 20-foot posts for the approximately 12-foot square new screen tower had been set on a cement pad and the miners were hooking up the 14 foot long, 3 inches by 3 inches by ¼ inch cross braces at the time of the accident. A manlift basket was used to lower the steel cross braces. While trying to align the bottom bolt of the top cross brace on the southwest corner of the screen tower the miners had moved to the northwest corner to loosen the chain fall, so that the tower uprights (the posts) would spread some to align the bolt hole. The unbolted top cross brace at the southwest corner fell off the bolt place (“dog”) and struck miner Heins in the head. Heins was not wearing a hard hat and was working under the top two suspended cross braces. As a result of the accident, Heins suffered a concussion and a skull fracture, and his left ear was practically severed. He was released from the hospital on November 22 and cleared to return to work on November 28, 2008.
12. McGill, the company president, was working on site with Heins and miner Nick Roberts (“Roberts”) loosening mount bolts on the southwest upright so that Heins and Roberts could spread the angle irons to align the bolt hold with the upright post.
13. McGill knew Heins was not wearing his hard hat but nevertheless allowed Heins to work under suspended loads because it was a cold day and Heins was wearing a sock hat.
14. McGill was the supervisor on the date of the accident.
15. Roberts was standing next to Heins when the brace came loose and fell, striking Heins in the head.
16. After Heins was struck in the head by the cross member, McGill called 911 and followed the ambulance to the hospital.
17. McGill then called the MSHA accident hotline to report the accident.
18. The Mine removed equipment from the accident site before MSHA arrived to perform its accident investigation. No 103(j) or (k) order had been issued when the equipment was removed. No special investigation is pending.
19. Heins had worked for Magic Valley Sand & Gravel for approximately ten years at the time of the accident.
20. Roberts had worked for Magic Valley Sand & Gravel for approximately four years at the time of the accident.
21. Adamson issued the citation as significant
and substantial.
22. Adamson issued the citation to reflect the
chance of injury or illness as reasonable likely.
23. Adamson issued the citation to reflect the
chance of injury or illness as reasonably expected to be fatal.
24. Adamson issued the Citation as high
negligence.
25. Adamson issued the citation as 1 person
affected.
26. The penalty assessed to the citation was
$60,000.
27. The Mine has been in operation since August 1988. A copy of the Mine Quarterly Production Information from 2001 through 2011 is Government Exhibit 2.
28. The penalty computation sheet and the Narrative Finding for a Special Assessment is Government Exhibit 3. The computation sheet used “0” for the “Controller Size Points” and the “Mine Size Points” because the mine is small. See Government Ex. 2 and 3. In addition the Mine received “0” points for history and repeated violations due to its safety record prior to the accident.
29. Respondent’s Exhibit 1 consists of tax
returns and other financial data (unaudited) for the company.
30. The parties do not object to the receipt into evidence of Government Exhibits 1-3 and Respondent’s Exhibit 1.
II. BRIEF SUMMARY OF THE
PARTIES’ ARGUMENTS
A.
Secretary of Labor
The Secretary argues that a violation of 30 C.F.R. § 56.15002 occurred and the court should affirm the citation as written. The Secretary argues that the penalty of $60,000.00 is appropriate considering the six penalty review criteria set forth in Section 110(i) and the deterrent purposes of the Mine Act. The operator had no history of repeat violation history. The operator acted in good faith in abating the cited condition. The operator agrees it was highly negligent. The Secretary argues that the negligence criteria should be given more weight than the others because the president and co-owner knew the miner was not wearing a hard hat, disregarded basic safety principles, and the miner suffered severe injuries. The Respondent does not claim an inability to pay. The gravity of the situation was high because an injury was likely to occur, likely to be fatal, one person was affected, and the violation was significant and substantial. The Secretary argues that the court should give significant weight to the gravity of the situation. The Secretary argues that the Respondent has failed to provide adequate information regarding the size of its business and that the information provided shows the mine making a profit and paying significant wages.
B.
Magic Valley Sand & Gravel
Magic Valley argues that the proposed $60,000.00 penalty should be disregarded. First it argues that the penalty would adversely affect its ability to stay in business. Second, it argues the penalty is inappropriate given the small size of the operator.
Magic Valley argues that the $60,000.00 penalty would adversely affect its ability to stay in business because it has consistently lost money between 2008 and 2010 and has not turned a profit since 2007. Respondent pays salaries to two employees and two shareholders and argues that the salaries are not excessive in terms of the amount of work they do to keep the business running. It argues that the financial information provided shows that the Respondent would have to employ fewer miners if it is required to pay the proposed penalty, which is a great threat to the continuation of the business as a whole. It argues that Congress did not intend or expect miners to suffer financial harm from the civil penalties paid by mine operators.
Magic Valley further argues that the proposed penalty is inappropriate and excessive given the small size of the company. The Dollar Dredge mine was only worked for 145 hours in 2008, 122 hours in 2009, 68 hours in 2010, and 92 hours in 2011, with between one and three employees. The mine is one of three operated intermittently by Magic Valley. Further, Magic Valley points out that proposed penalties for many other companies in the mining industry are almost miniscule considering the relative profitability of their businesses.
III.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Section 110(i) of the Mine Act states:
The Commission shall have authority to assess all civil penalties provided in this Act. In assessing civil monetary penalties, the Commission shall consider the operator’s history of previous violations, the appropriateness of such penalty to the size of the business of the operator charged, whether the operator was negligent, the effect on the operator’s ability to continue in business, the gravity of the violation, and 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). In assessing a penalty, Commission judges must consider all six penalty criteria set forth in Section 110(i) of the Mine Act. Cantera Green, 22 FMSHRC 616, 620-21 (May 2000).
I find that the gravity of the violation was very serious. A very serious injury occurred as a result of this violation and the violation could have resulted in a fatality. The violation was properly determined to be of a significant and substantial nature. In this instance, failure to wear a hard hat led to one miner sustaining the serious injuries of concussion, skull fracture, and damaged ear. I also find that Magic Valley’s negligence was high. Magic Valley’s President, James McGill, was aware that the miner was not wearing his hard hat but allowed him to continue constructing a screen tower.
Respondent abated the condition in good faith. Excluding the two citations issued in response to this accident, the mine has a very low history of previous violations. The mine was only issued three citations prior to November 2008: two in 2001 and one in 2007. None of these violations were significant or substantial. I also find that the mine is extremely small. The mine worked for 143 employee-hours in 2007, 145 employee-hours in 2008, 122 employee-hours in 2009, 68 employee-hours in 2010, and 92 employee-hours in 2011. (See Government’s Exhibit 2). In addition, these hours were intermittent, with the mine unworked for periods up to half a year. Id. Total employment ranged between two and three employees during this period.
I also believe that the Secretary’s proposed penalty of $60,000.00 is likely to affect the mine’s ability to continue in business. As evidence of its ability to continue in business, Magic Valley has produced tax returns for the company for years 2007, 2008, 2009, and 2012, partial tax returns of the shareholders for 2008 through 2010, and sales summaries for 2007 to 2011. (Respondent’s Exhibit 1). Magic Valley’s tax returns show that the company last turned a profit in 2007. (See Respondent’s Exhibit 1 at 1). In 2008 Magic Valley lost $184,974.00 Id. at 14. In 2009 it lost $108,727.00 Id. at 26. In 2010, the last tax year for which Magic Valley has provided a return, the company lost $14,417.00 Id. at 37. While Magic Valley does not dispute its ability to pay the proposed penalty, the financial losses of 2008 to 2010 indicate that paying the full $60,000.00 penalty would likely affect the company’s ability to continue in business.
In consideration of Magic Valley’s small size and the adverse effect of the penalty on the mine’s ability to continue in business, I find that a penalty of $10,000.00 is appropriate. The Secretary specially assessed the penalty in accordance with 30 C.F.R. § 100.5. The regular assessment penalty amount for this Section 104(d)(1) citation would have been $2,000.00. (Government Exhibit 3; Sec. 110(a)(3)(A) of the Mine Act, 30 U.S.C. § 820(i)). In reducing the penalty, I have primarily relied on Magic Valley’s extremely small size. The Secretary’s penalty point system simply does not produce a fair result for very small sand and gravel operations. The Secretary’s proposed penalties for large multinational mining companies are proportionally smaller than the penalties it often proposes for small, intermittent sand and gravel operations. The operator’s small size warrants a reduction in the penalty in this case.
IV. ORDER
For the reasons set forth above, Magic Valley’s motion for summary decision is GRANTED to the extent that it is consistent with this decision. The Secretary’s motion for summary decision is DENIED to the extent it is inconsistent with this decision. Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), I assess a penalty of $10,000.00. For the reasons set forth above, Citation No. 6436668 is AFFIRMED and Magic Valley Sand & Gravel, Inc., is ORDERED TO PAY the Secretary of Labor the sum of $10,000.00 within 40 days of the date of this decision.1
/s/
Richard W. Manning
Richard W. Manning
Administrative Law Judge
Distribution:
Jessica Allen, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800, Denver, CO 80202-5708
Denise E. Giraudo, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, PC, 1909 K Street NW, Suite 1000, Washington, DC 20006
RWM
1 Payment should be sent to the Mine Safety and Health Administration, U.S. Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.