FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE, N.W., SUITE 9500

WASHINGTON, DC 20001-2021

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

December 19, 2011

DECISION AND ORDER

            This case is before me upon a petition for civil penalty filed by the Secretary of Labor pursuant to section 105 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 (the “Mine Act”). At issue, is a citation issued by the Department of Labor’s Mine Safety and Health Administration (“MSHA”) under Section 104(a) of the Act alleging a violation of 30 C.F.R. §50.10, which provides:

30 C.F.R. § 50.10: The operator shall immediately contact MSHA at once without delay and within 15 minutes at the toll free number, 1-800-746-1553, once the operator knows or show know that an accident has occurred involving:

                   (a) A death of an individual at the mine;

(b) An injury of an individual at the mine which has a reasonable potential to cause death;

(c) An entrapment of an individual at the mine which has a reasonable potential to cause death;

                   (d) any other accident.

            The parties filed cross-motions for summary decision and the following joint stipulation of facts:

            1. At all times relevant to this matter, Respondent Standard Sand & Silica Co. (“Standard Sand”) was the owner and operator of the Lake Wales Dry Plant (Mine ID# 08-00395) near Davenport, Florida in Polk County (the “Mine”).

            2. Standard Sand is engaged in mining operations in the United States, and its mining operations affect interstate commerce.

            3. Standard Sand is subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 801-965 (the “Mine Act”).

            4. The Mine is a “mine” as that term is defined in § 3(h) of the Mine Act, 30 U.S.C. § 802(h).

            5. The Mine is a surface metal/nonmetal mine.

            6. The Mine is a milling operation which dries, screens and bags mined sand.

            7. The Administrative Law Judge of the Federal Mine Safety and Health Review Commission has subject matter and personal jurisdiction over the dispute in this case.

            8. L. Baylis Carnes owns Standard Sand.

            9. Robert Lee Works was an employee of Standard Sand.

            10. On May 20, 2010, at approximately 4:45 a.m., Mr. Works suffered a fatal heart attach while working at the Mine.

            11. As of May 20, 2010, Mr. Works was 51 years old and had worked for Standard Sand approximately 19 years as a plant laborer.

            12. On May 20, 2010, Mr. Works began his shift at the Mine at 12:00 a.m.

            13. That night, Mr. Works was operating a manual sand bagging machine with help from two other employees of Standard Sand: Scott Grimes and Gilbert Gutierrez.

            14. Mr. Works was operating the bagging machine while Mr. Grimes and Mr. Gutierrez were stacking filled bags of sand onto pallets.

            15. When tanker trucks began to arrive at the Mine, Mr. Grimes and Mr. Gutierrez left to load the trucks with bags of sand. Mr. Works remained at the area near the bagging table.

            16. At approximately 4:45 a.m., Mr. Gutierrez returned to the bagging table area and saw Mr. Works lying on the ground.

            17. Mr. Gutierrez tried to rouse Mr. Works but could not get a response.

            18. Mr. Gutierrez ran to get a face shield from the first-aid kit.

            19. Mr. Grimes then returned to the bagging table area from the truck loading platform and saw Mr. Works on the ground.

            20. Mr. Gutierrez performed cardiopulmonary resuscitation (“CPR”) on Mr. Works.

            21. Mr. Grimes called 911 while Mr. Gutierrez was performing CPR on Mr. Works.

22. After calling 911, Mr. Grimes called the plant manager, Weldon Till.

            23. Mr. Gutierrez continued to perform CPR on Mr. Works until an ambulance arrived at approximately 4:55 a.m. on May 20, 2011.

            24. Upon the ambulance’s arrival, emergency medical technicians (“EMT’s”) took over CPR from Standard’s employees.

            25. A sheriff’s department deputy arrived approximately four minutes later.

            26. The EMT’s performed CPR on Mr. Works at the plant for approximately 30 to 35 minutes before he was loaded into the ambulance.

            27. The EMT’s hooked Mr. Works up to a defibrillator.

            28. Mr. Till arrived while the EMT’s were performing CPR.

            29. The ambulance left the mine at approximately 5:40 a.m.

            30. According to the autopsy report, Mr. Works was pronounced dead at 6:06 a.m. on May 20, 2010.

            31. The autopsy report found that Mr. Works suffered from atherosclerotic and hypertension heart disease, hepatomegaly, nephrosclerosis and pulmonary emphysema.

            32. The autopsy report concluded that Mr. Works died as a result of atherosclerotic heart disease and that the manner of his death was “natural.”

            33. Standard Sand’s Safety Director, Gordan Broadhead, called the Mine Safety and Health Administration (“MSHA”) to report Mr. Works’ death by heart attack at 7:12 a.m.

            34. In response to this report, MSHA dispatched Inspector Robert Peters to investigate the incident.

            35. In accordance with his authority under the Mine Act, Inspector Peters issued Citation 6599395, charging Standard Sand with a violation of 30 C.F.R. § 50.10(b) for failure to report to MSHA within 15 minutes an accident involving an injury at a mine that has reasonable potential to cause death.

            36. Standard Sand’s history of violations indicates 5 assessed violations at the Mine over 4 inspection days during the 15-month period prior to May 20, 2010, the date the citation was issued. Standard Sand’s history at the Mine also indicates no prior violations of 30 C.F.R. § 50.10(b) during the same 15-month period.

            37. Standard Sand’s Quarterly Mine Tonnage or Hours Worked Report reflects 33,845 mine hours worked at the Mine in calendar year 2009. The same report reflects 86,599 total hours worked at all of Standard Sand’s mines in calendar year 2009.

            38. Standard Sand does not contend that it would be unable to continue business by payment of the assessed penalty in this case.

            39. Because the violation at issue is a reporting violation, MSHA rated the gravity of the violations as follows: (a) probability of “no likelihood,” and (b) severity of “no lost workdays.” The citation is not rated as “significant and substantial.”

            40. Standard Sand demonstrated good faith in achieving rapid compliance after notification of the alleged violation.

            41. MSHA rated the negligence of the violation as “high.”

            42. On May 20, 2010 Standard Sand was aware of the requirement in 30 C.F.R. § 50.10 to report accidents involving injuries at a mine that have a reasonable potential to cause death to MSHA at once without delay and within 15 minutes.

            43. MSHA specially assessed a civil money penalty of $5,000, which is the minimum penally the Secretary may assess under § 110(a)(2) of the Mine Act, 30 C.F.R. § 820(a)(2), for failure to timely report a death at a mine or an injury at a mine that has a reasonable potential to cause death.

Brief Summary of the Parties’ Arguments

A. Secretary of Labor

            Petitioner argues that the stipulated facts establish that the Respondent failed to alert MSHA about an accident - an injury of an individual at the mine which has a reasonable potential to cause death - until at least an hour and 32 minutes had lapsed. This was 77 minutes past the deadline prescribed in the regulation. Therefore, the Secretary argues that the citation should be affirmed and the proposed penalty of $5,000.00 is the minimum penalty required by Congress for such a violation pursuant to the provisions of the Mine Act, 30 U.S.C. § 820(a)(2).

B. Standard Sand & Silica Co.

            Respondent argues that it did not violate 30 C.F.R. § 50.10 because Mr. Works’ heart attack was not an injury, but rather the result of a non-occupational illness from natural causes and not any work- related act. Consequently, Respondent argues that there was no “accident” within the meaning of 30 C.F.R. § 50.10, and thus no immediate reporting was required.

Discussion and Analysis

            The Commission’s rules provide that a “motion for summary decision shall be granted only if the entire record, including pleadings, depositions, answers to interrogatories, admissions, and affidavits show that: (1) there is no genuine issue as to any material fact; and (2) the moving party is entitled to summary decision as a matter of law.” 29 C.F.R. §2700.67(b). Based on the parties’ joint stipulation and cross-motions, I find that there is no genuine issue of material fact presented and the stipulated facts are sufficient to render a decision on the legal issues raised in the parties’ cross motions for summary judgment.

            Although prior ALJ decisions are not controlling, I find that Judge Augustine’s discussion in E.S. Stone & Structure, 33 FMSHRC 515 (Jan. 2011) (ALJ Augustine), which involved very similar facts, is particularly instructive and persuasive here. In that case, based primarily on undisputed facts that respondent’s employees, in the presence of a supervisor, began performing CPR at 11:08 a.m. on a miner who had suffered a heart attack on the job; the fact that the heart attack victim was pronounced dead by the coroner at 12:05 p.m. that afternoon; and the fact that respondent made its first attempt to contact MSHA at 12:45 p.m., the judge found that respondent failed to comply with the requirements of 30 C.F.R. §50.10. In addressing those requirements, Judge Augustine noted the following:

The Miner Act imposed a 15 minute time limit for reporting fatalities and serious accidents. 30 U.S.C. § 813(j). As a result, in March of 2006, MSHA issued an Emergency Temporary Standard (“ETS”) which modified the language 30 C.F.R. § 50.10 where operators were previously required to “immediately” report fatalities and accidents, by imposing a 15 minute time limitation. 71 F.R. 12260. In the preamble to the ETS, MSHA stated that the “ETS does not change the basic interpretation of 30 C.F.R. § 50.10. By the terms of the provision, an operator is required to notify MSHA only after determining whether an “accident” as defined in existing paragraph 50.2(h) has occurred. This affords operators a reasonable opportunity to investigate an event prior to notifying MSHA. That is, mine operators may make reasonable investigative efforts to expeditiously reach a determination.” Id. When the Final Rule on the amendment to this regulation (and others) was promulgated in December 2006, Section 50.10 was further modified and MSHA’s preamble language explaining that the amendments to 50.10 still allow a “reasonable opportunity to investigate an event prior to notifying MSHA” was removed. The preamble also clarifies, in a manner consistent with Commission case law, that incidents requiring cardio-pulmonary resuscitation (CPR) constitute “injuries which have a reasonable potential to cause death.” 71 F.R. 71434. See Cougar Coal, 25 FMSHRC 513 (September 5, 2003)(italics added).

33 FMSHRC at 519.

            Based on the stipulated facts, Judge Augustine concluded that respondent knew it had experienced a reportable accident arguably at 11:23 a.m. (fifteen minutes after CPR was initiated) and conclusively at 12:20 p.m. (fifteen minutes after the official pronouncement of death). The judge agreed with MSHA’s designation that the violation was non-S&S, but did not agree that respondent demonstrated moderate negligence. Emphasizing that respondent quickly implemented and exhausted life-saving efforts, conducted a prompt assessment/investigation into the situation, and then immediately proceeded to contact MSHA, he modified the operator’s negligence from “moderate” to “low.” Id. at 520.

            Similarly, in this case, the following facts are undisputed. On May 20, 2010, Mr. Till, the plant manager, arrived while the EMTs were performing CPR on Mr. Works, who had suffered a heart attack on the job. The EMTs performed CPR on Mr. Works for approximately 30 to 35 minutes before Mr. Works was loaded into the ambulance. The ambulance left the mine at approximately 5:40 a.m. Mr. Works was pronounced dead at 6:06 a.m. that same morning. Respondent did not make its first contact with MSHA until 7:12 a.m.

            In these circumstances, I find that Respondent failed to comply with the requirements of 30 C.F.R. § 50.10. Respondent knew or should have known that it had experienced a reportable accident arguably at about 5 a.m. (fifteen minutes after CPR was initiated by Mr. Gutierrez, while Mr. Grimes called 911 and plant manager Till), more definitively at 5:10 a.m. (approximately 15 minutes after the ambulance arrived and the EMTs took over CPR functions), and conclusively at 6:21 p.m. (fifteen minutes after the official pronouncement of death). I agree with MSHA’s designation that the violation was non-S&S, but do not agree that Respondent demonstrated high negligence. Like the respondent in E.S. Stone, Respondent quickly implemented and exhausted life-saving efforts, contacted 911 and the plant manager, conducted a prompt assessment at the scene, and contacted MSHA reasonably promptly, although not immediately, after learning of the death. In these circumstances, I modify the operator’s negligence from “high” to “moderate.”

Penalty

            Respondent, as operator of the Mine has failed to provide timely notification to the Secretary as required under section 103(j) (relating to the 15 minute requirement), and therefore shall be assessed a civil penalty by the Secretary of not less than $5,000 and not more than $60,000. See section 110(b)(2) of the Mine Act. The Secretary has assessed a proposed penalty of $5,000, the statutory minimum for the violation.

            Under section 110(i) of the Act, “the Commission shall have authority to assess all civil penalties provided in this Act.” 30 C.F.R. § 820(i). Although the Secretary issues citation and orders under the Act and proposes civil penalties, it is the Commission that is responsible for assessing civil penalties and providing other appropriate relief. Sellersburg Stone Co., 5 FMSHRC 287, 290-91 (Mar. 1983), aff’d, 736 F.2d 1147 (7^th Cir. 1984). The Commission’s assessment of penalties is a de novo determination based on the six statutory criteria specified in section 110(i) of the Act. Section 110(i) of the Act requires the Commission to assess civil monetary penalties considering: (1) the operator’s history of previous violations, (2) the size of the business, (3) the level of negligence by the operator, (4) the effect on the operator’s ability to continue in business, (5) the gravity of the violation, and (6) demonstrated good faith in attempting to achieve rapid compliance after notification of the violation.

            The stipulations state that Standard Sand’s history of violations indicates 5 assessed violations at the Mine over 4 inspection days during the 15-month period prior to May 20, 2010, the date the citation was issued. Standard Sand’s history at the Mine also indicates no prior violations of 30 C.F.R. § 50.10(b) during the same 15-month period. I have found that Respondent exhibited moderate negligence because it quickly implemented and exhausted life-saving efforts, contacted 911 and the plant manager, conducted a prompt assessment at the scene, and contacted MSHA reasonably promptly, although not immediately, after learning of the death. The Respondent has stipulated that the penalty will not affect its ability to stay in business. The violation was determined to be non-S&S and there was no likelihood that an injury or illness would result from the violation. Standard Sand demonstrated good faith in achieving rapid compliance shortly after the failure to immediately report the accident. According, the penalty proposed by Petitioner of $5,000.00 for Citation No. 6599395 is affirmed.

Order

            Based upon the foregoing findings of fact, discussion and analysis, it is ORDERED that Citation No. 6599395 be AFFIRMED, AS MODIFIED, with a penalty of $5,000.00, which shall be paid by Respondent within thirty (30) days.

                                                                        /s/ Thomas P. McCarthy

                                                                        Thomas P. McCarthy                                                                                                             

                                                                        Administrative Law Judge

Distribution: (E-Mail and Certified Mail)

Benjamin A. Stark, Esq., U.S. Department of Labor, Office of the Solicitor, 61 Forsyth Street, S.W., Room 7T10, Atlanta, Georgia, 30303, for Petitioner

Nichelle Young, Esq., Law Office of Adele L. Abrams, P.C., 4740 Corridor Place. Suite D, Beltsville, Maryland 20705, for Respondent

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