FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001

October 19, 2011

DECISION ON REMAND

Before:                 Judge Feldman

            The Petition for Assessment of Civil Penalty filed in this proceeding by the Secretary of Labor (the Secretary), pursuant to section 110(a) of the Federal Mine Safety and Health Act of 1977 (the Mine Act), as amended, 30 U.S.C. § 820(a), sought to impose a civil penalty of $946.00 on Nally and Hamilton Enterprises, Inc. (“N&H”) for Citation No. 7557475. The citation alleged a violation of 30 C.F.R. § 77.410(c) for failure to maintain a reverse warning alarm on a lube truck. The relevant portion of the cited mandatory standard provides that “[w]arning devices shall be maintained in functional condition.”

            The initial decision vacated Citation No. 7557475. 31 FMSHRC 689 (June 2009) (ALJ). The citation was vacated because the Secretary neither demonstrated nor alleged that the back-up alarm was inoperative for a significant period of time when the malfunction was first observed by the inspector. Thus, the initial decision concluded that the Secretary had not demonstrated that N&H had failed to maintain the alarm because the Secretary did not establish that the alarm was not repaired in a timely manner. Id. at 693.

            The Commission reversed the initial decision, reinstated Citation No. 7557475, and remanded for resolution of the issues of whether the subject 30 C.F.R. § 77.410(c) violation was properly designated as significant and substantial (S&S), and, for a determination of the appropriate civil penalty to be assessed. 33 FMSHRC (Aug. 2011). Noting that the Mine Act is a strict liability statute, the Commission concluded that the clear meaning of the operative term “maintain” in 30 C.F.R. § 77.410(c) requires “that warning devices shall be capable of performing on an uninterrupted basis at all times.” Slip op. at 5. However, the Commission stated that the extent of N&H’s knowledge of the defect based on the duration of the malfunction may be a relevant consideration in determining N&H’s degree of negligence, and its effect on the appropriate civil penalty. Slip op. at 6.

            The parties were provided with the opportunity to settle this matter consistent with the parameters of the Commission’s remand. The parties declined to do so.

                        S&S

            As a general proposition, a violation is properly designated as S&S if, based on the particular facts surrounding the cited condition, there exists a reasonable likelihood that the hazard contributed to by the violation will result in an injury or an illness of a reasonably serious nature. Cement Division, National Gypsum, 3 FMSHRC 822, 825 (April 1981). The Commission resolves whether a violation is properly characterized as S&S based upon the four longstanding criteria initially set forth in Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984). In Mathies the Commission explained:  

In order to establish that a violation of a mandatory safety standard is significant and substantial under National Gypsum, the Secretary of Labor must prove:

(1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard -- that is, a measure of danger to safety -- contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to [by the violation] will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a reasonably serious nature.

6 FMSHRC at 3-4; see also Austin Power Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (December 1987) (approving Mathies criteria).

            The Commission explained its Mathies criteria in U.S. Steel Mining Co., Inc., 7 FMSHRC 1125 (Aug. 1985):

We have explained further that the third element of the Mathies formula “requires that the Secretary establish a reasonable likelihood that the hazard contributed to will result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance with the language of section 104(d)(1), it is the contribution of a violation to the cause and effect of a hazard that must be significant and substantial. U.S. Steel Mining Company Co., Inc., 6 FMSHRC 1866, 1868 (August 1984).

7FMSHRC at 1129 (emphasis in original).

            Applying Mathies, the first element is satisfied by virtue of the Commission’s determination that N&H violated the safety standard in section 77.410(c). The second element of Mathies is likewise satisfied by the discrete safety hazard posed by the inability to warn persons who are positioned behind, and exposed to, the rear of a moving lube truck under circumstances where the truck operator’s view is impaired.

            The third and fourth criteria require a showing of a reasonable likelihood that the hazard contributed to by the inoperable warning device will result in a serious injury. The likelihood of such injury must be viewed in the context of continued exposure to the hazard posed by the violation assuming the violation continued unabated in the face of normal mining operations. Southern Oil Coal Co., 13 FMSHRC 912, 916-17 (June 1991); Halfway, Inc., 8 FMSHRC 8, 12 (January 1986); U.S. Steel Mining Co., Inc., 6 FMSHRC 1473, 1574 (June 1984).

            David A. Faulkner, the issuing Mine Safety and Health Administration (MSHA) inspector, testified that mine personnel frequently traverse the pit area during the course of their duties, and when they walk to and from lunch. There is a considerable degree of noise emanating from the pit equipment which may interfere with a potential victim’s ability to hear the approaching truck without a specially designed alarm. Finally, Faulkner determined that the design of the lube truck precluded the truck operator from observing whether individuals were positioned directly behind the vehicle. Under such circumstances, given continued operations with a non-functioning warning device, it is reasonably likely that an injury related accident will occur, and, that such injury will be serious or fatal. Thus, the third and fourth elements of Mathies are satisfied. Consequently, the cited condition in Citation No. 7557475 was properly designated as S&S.

                        Civil Penalty

            The Mine Act requires that, “[i]n assessing civil monetary penalties, the Commission shall consider” six statutory penalty criteria. The six criteria are:

[1] the operator’s history of previous violations, [2] the appropriateness of such penalty to the size of the business of the operator charged, [3] whether the operator was negligent, [4] the effect of the operator’s ability to continue in business, [5] the gravity of the violations, and [6] 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).

            The Commission’s de novo authority to assess civil penalties does not require “that equal weight must be assigned to each of the penalty assessment criteria.” Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997). Rather, the judge must qualitatively analyze each of the penalty criteria to determine the appropriate civil penalty to be assessed. Cantera Green, 22 FMSHRC 616, 625-26 (May 2000). The Secretary has proposed a civil penalty of $946.00

for Citation No. 7557475. As noted by the Commission in this case, the short term duration of a defect may impact on the degree of negligence attributable to a mine operator’s failure to maintain equipment in functioning condition. Faulkner testified:

Q: So is it your belief that between 6 a.m. and 2:15 p.m. on

January 3^rd, 2008, the back-up alarm became dysfunctional?

A: That’s correct.

(Tr. 49).

            The initial decision recognized that perfunctory pre-shift examinations are not uncommon. 31 FMSHRC at 691. However, the Secretary’s witness testified that he believed the malfunction was relatively brief in duration. Although the Secretary attributed N&H’s failure to maintain the back-up alarm to a moderate degree of negligence, the evidence supports either strict liability, or, only very low negligence, under the third statutory criterion.

            While the cited condition was of serious gravity, the remaining criteria do not significantly impact the civil penalty issue. In view of the mitigating circumstances with respect to negligence reflected by the record, and in recognition of the serious gravity as demonstrated by the potential for serious injury, a civil penalty of $469.00 shall be assessed for Citation No. 7557475.

ORDER

            In view of the above, IT IS ORDERED that the S&S designation in Citation No. 7557475 IS AFFIRMED. 

            IT IS FURTHER ORDERED that Nally and Hamilton Enterprises, Inc., SHALL PAY, within 45 days of the date of this Decision, a civil penalty of $469.00 in satisfaction of Citation No. 7557475. Upon receipt of timely payment, IT IS ORDERED that the civil penalty proceeding in Docket No. KENT 2008-712 IS DISMISSED.

                                                                        /s/ Jerold Feldman

                                                                        Jerold Feldman

                                                                        Administrative Law Judge

Distribution:

W. Christian Schumann, Esq., Robin Rosenbluth, Esq., Office of the Solicitor,

U.S. Department of Labor, 1100 Wilson Blvd., Room 2220, Arlington, VA 22209-2296

Jennifer D. Booth, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, Suite 230, Nashville, TN 37219-2456

C. Bishop Johnson, Esq., Stephen C. Cawood, Esq., Cawood & Johnson, PLLC, 108 Kentucky Avenue, P.O. Box 128, Pineville, KY 40977

/jel