FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9958 / FAX: 202-434-9949
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SECRETARY OF LABOR MINE SAFETY AND HEALTH ADMINISTRATION (MSHA), Petitioner
v.
R7 ENTERPRISES, LLC, Respondent |
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CIVIL PENALTY PROCEEDING:
Docket No. KENT 2013-357 A.C. No. 15-18353-309799
Mine: Frasure Creek Mining, LLC F-2 |
July 21, 2014
DECISION
Appearances: J. Malia Lawson, Esq.; Office of the Solicitor, U.S. Department of Labor,
618 Church Street, Suite 230, Nashville, TN 37219-2440 for Petitioner;
Mark E. Heath, Esq.; Spilman, Thomas & Battle, PLLC; 300 Kanawha
Blvd., East, Charleston, WV 25301 for Respondent
Before: Judge David Barbour
In this proceeding arising under the Federal Mine Safety and Health Act, 30 U.S.C. 801 et seq. (2012) (Mine Act or Act), the Secretary alleges that R7 Enterprises, LLC, (R7) violated mandatory safety standard 30 C.F.R. 77.404(a), while preforming contract work at the F-2 Mine of Frasure Creek Mining, LLC.[1] The standard requires that [“m]obile and stationary machinery and equipment shall be maintained in safe operating condition and machinery or equipment in unsafe condition shall be removed from service immediately.” 30 C.F.R. 77.404(a). The Secretary asserts that on November 9, 2012, Mine Safety and Health Administration Inspector Brian K. Robinson found that a hydroseeding truck had excessive slack on its right steering tie rod end and on its short steering arm. In addition, the truck’s right rear tandem brake was inoperative. The truck, which was in use at the mine, was owned by R7 and was being operated by one of its employees. The inspector cited R7 for the alleged violation. He found that the violation was reasonably likely to cause a fatality, that the violation was a significant and substantial contribution to a mine safety hazard and that R7 was highly negligent in allowing the condition to exist. The Secretary petitioned for the assessment of a civil penalty of $51,236 for the alleged violation.
After the petition was filed, the company answered essentially asserting the truck’s defects were discovered by the company on November 8, 2012, that its employees were told not to operate the truck until it was repaired, and that the mechanic arrived to repair the truck on November 9, but before he could act, the inspector, who was on the scene, issued the citation. The Commission’s chief judge assigned the case to the undersigned who directed the parties to engage in discussions to determine whether they could resolve their differences. When, after working with the Commission’s settlement counsel, the parties reported they remained at loggerheads, the undersigned scheduled the matter for hearing.
After a continuance due to a conflict on the undersigned’s part, the parties agreed to go forward on June 17, 2014, in Prestonsburg, Kentucky. Upon arriving in Prestonsburg on the evening of June 16, 2014, the undersigned found a message left at his hotel stating that the parties settled the case. By e-mail, the undersigned asked counsels to proceed to the courthouse in the morning and there to put the settlement on the record.[2] The hearing convened as scheduled on the morning of June 17, and counsel for the Secretary explained the settlement as follows:
Citation No. Date 30 C.F.R. Proposed Penalty Settlement Amount
8275983 11/9/12 77.4045(a) $51,236 $18,000
Counsel for the Secretary stated that the parties agreed the inspector’s negligence finding should be modified from high to moderate. Tr. 12. The bases for the agreement are assertions in R7's answer that on November 8 the defects were discovered by the truck operator, that the parts needed for the necessary repairs were picked up by R7's mechanic the next morning, that he brought the parts to the mine, but that the inspector cited the company before the truck could be repaired. Id. The parties also agreed a total penalty of $18,000 was warranted and requested that it be paid in three installments of $6,000 at 30 day intervals. Id. In addition, counsel for R7 maintained that except for proceedings brought under the Mine Act, the settlement does not represent an admission by the company that it violated section 77.404(a). Tr. 13.
ORDER
The undersigned, who is loath to second guess counsels, finds the settlement eminently reasonable. Tr. 13. Therefore the settlement IS APPROVED. Within 30 days of the date of this decision, R7 IS ORDERED to pay a total penalty of $18,000 for the violation in question and to do so in three installments of $6,000, the first installment being due 30 days from the date of this decision and the other two installments being due at 30 day intervals thereafter.[3] In addition, the settlement is approved with the understanding that R7 agrees it violated section 77.404(a) for
Mine Act purposes only and that its admission may not be used for proceedings under any other act.
/s/ David F. Barbour
David F. Barbour
Administrative Law Judge
Distribution (Certified Mail):
J. Malia Lawson, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, Suite 230, Nashville, TN 37219-2440
Mark E. Heath, Spilman Thomas & Battle, PLLC, 300 Kanawha Boulevard, East, Post Office Box 273, Charleston, WV 25321-0273
Ryan Risner, Owner/Manager, R7 Enterprises, LLC, HC 88 Box 119, Gunlock, Kentucky 41632
/db
[1] The mine is a surface coal mine located in Floyd County, Kentucky.
[2] Due to fiscal constraints under which his client was operating, counsel for R7 requested permission to enter an appearance telephonically sparing his client time and travel expenses. There being no objection from counsel for the Secretary, the undersigned agreed. Tr. 10.
[3] Payment shall be sent to: Mine Safety and Health Administration, U.S. Department of
Labor, Payment Office, P.O. Box 790390, St. Louis, Missouri 63197-0390.