FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION
UNITED STATES CUSTOM HOUSE
(303) 844-3409 / Fax (303) 844-3759
July 7, 2011
SECRETARY
OF LABOR
MINE
SAFETY AND HEALTH ADMINISTRATION (MSHA),
Petitioner
v.
LAFARGE
Respondent
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CIVIL PENALTY PROCEEDING Docket No.: CENT 2010-4-M A. C. No.: 13-00125-197511 Davenport Plant (Judge Patrick B. Augustine) |
Appearances:
Joshua Raines Patrick, Esq.,
Office of the Solicitor,
For the
Petitioner
Mark Savit, Esq. and Donna
Vetrano Pryor, Esq., Patton Boggs LLP,
For the
Respondent
Before:
Administrative Law Judge Patrick B. Augustine
DECISION
AND ORDER
Procedural
History
This case is before the court upon a
petition for assessment of civil penalties under Section 105(d) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. §801 et. seq. (the “Act”). This
case involves the issuance of citations by the Department of Labor’s Mine
Safety and Health Administration (“MSHA”) under Section 104(a) of the Act
alleging four separate violations of 30 C.F.R. §56.14100(c) (“Citations”) at
the Respondent’s Davenport Plant. On February 18, 2011 the court approved a
Partial Settlement Agreement entered into between the parties in which all the
other citations subject to this case were settled. Respondent timely contested the remaining
Citations and a trial was held in
Stipulation
of Facts
The
parties stipulated to the following facts which were accepted into the Record
at Tr.7:
1. The Lafarge North America, Inc. Davenport
Plant, Mine ID 13-00125 (hereinafter “Lafarge”) is a Portland cement facility
located in Iowa which operates on three, eight-hour shifts, working seven days
a week. Total employment at the site is
approximately 100 persons.
2.
Lafarge is engaged in mining
in the
3.
Lafarge is subject to the
jurisdiction of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§
801 et. seq.
4.
The Federal Mine Safety and
Health Review Commission has jurisdiction in this matter.
5. Citation
Nos. 6413382, 6413383, 6413384 and 6413385 were properly served by a duly
authorized representative of the Secretary of Labor upon an agent of Lafarge on
the dates and places stated therein and were admitted into evidence for the
purpose of establishing their issuance, and not for the truthfulness or
relevancy of any statements asserted therein.
6.
With the exception of
Petitioner’s Exhibit 10, which was admitted into evidence at the trial on May
4, 2011, the exhibits offered by the parties were stipulated to be authentic
but no stipulation was entered into as to their relevance or the truth of the
matters asserted therein.
7.
The proposed penalties will
not affect Lafarge’s ability to continue in business.
8.
The operator demonstrated
good faith in abating the violations.
9.
Unless otherwise stated, all
the below stipulated facts were extant in 2009.
10.
Citation No. 6413382 relates
to the Chevy 2500 pick-up
11. Citation
No. 6413383 relates to the Ford F 250 pick-up
12.
Citation No. 6413384 relates
to the Ford F 250 pick-up
13.
Citation No. 6413385 relates
to the
14.
There have been no fatal
accidents at the Lafarge Davenport Plant.
15. There
was no injury or accident in relation to Citation Nos. 6413382, 6413383,
6413384 and 6413385.
16. When
performing the inspections that resulted in the issuance of Citation Nos.
6413382, 6413383, 6413384 and 6413385, Inspector Howard Wood used no
instruments to take measurements of the alleged movement in the ball joints
and/or tie rods.
17. When
performing the inspections that resulted in the issuance of Citation Nos.
6413382, 6413383, 6413384 and 6413385, Inspector Howard Wood did not have the
subject vehicles raised in any manner.
18. Inspector
Howard Wood performed the inspection of the vehicles indicated in Citations
6413382, 6413383, 6413384 and 6413385 while the subject vehicles were on the
ground as he was trained to do.
19. Inspector
Howard Wood did not rely on the service manual procedures or specifications for
the above-referenced vehicles when performing his inspections of the steering
linkages or when making the determination that a violation had occurred.
The
Cited Regulation
The Petitioner alleges four separate
violations of 30 C.F.R. §56.14100(c) which states as follows:
when defects
make continued operation hazardous to persons, the defective
items, including
self-propelled mobile equipment, shall be taken out of service and placed in a
designated area posted for that purpose, or tag or other effective method of
marking the defective items shall be used to prohibit further use until the
defects are corrected.
In order to establish a violation of
the above regulation, the Petitioner must prove by a preponderance of the
evidence; (i) the existence of a defect; (ii) continued operation would be
hazardous to persons and (iii) the defective item was not removed from service
until the defects were corrected.
Discussion
and Analysis
The Petitioner has the burden of
establishing some objective or reasonable standard which provides notice to the
Respondent that certain actions or inactions would result in non-compliance
with the standard. Gates & Fox Co. v. Occupational Safety & Health Rev. Comm’n, 790
F.2d 154, 156 (D.C. Cir. 1986)(“[D]ue process…prevents…deference from
validating the application of a regulation that fails to give fair warning of
the conduct it prohibits or requires.”); see
also Sec’y of Labor v. Energy West Mining Co., 17 FMSHRC 1313, 1317-18 (Comm’n
August 31, 1995).
Inspector Howard Woods (the
“Inspector”) testified that to test the ball joints, he looked under the cited
vehicles while all four tires were on the ground and instructed a Lafarge
employee to move the steering wheel. (Tr. 30). The Inspector admitted that he
was looking for an excess of 1/8-inch movement in the ball joints. (Tr.
39). He testified that he relied on the
measurements set out in the Commercial Vehicle Safety Alliance (“CVSA”), which
requires maintenance of ball joints where there is movement in excess of
1/8-inch “measured with hand pressure only”. (Ex. C-4; Tr. 39).
Mr. Ron Medina, the Petitioner’s
expert witness, also an employee of MSHA, suggested that the CVSA guidelines
were not applicable to any of the vehicles subject to the Citations because the
CVSA guidelines generally apply to heavy equipment in excess of 26,000 lbs.
(Tr. 171). Mr. Medina found, in his
expert opinion, that the 1/8-inch standard used by the Inspector was not
applicable. In addition, Mr. Medina
could not state any measurement or standard that would be considered objective
or reasonable to test the ball joints. (Tr. 194).
Mr. Medina then went on to address
tests, standards, methods and measures set forth in service manuals of the
respective vehicles. However, none of
these tests were applied by the Inspector in the issuance of the citations.
(Ex. C-5, C-8, C11 and C-12 and Tr. 145). The court notes the attempt to make
these service manuals applicable after the fact to support the issuance of the
Citations does not provide the Respondent with objective notice of the criteria
applicable in order to assess compliance with the cited standard before the
issuance of theCitations. In short, if
MSHA’s own employees could not agree by the time of trial on the proper basis
and standards for examining vehicle ball joints, how could Respondent have
proper notice of the appropriate standard of compliance?
The Petitioner has the burden of
demonstrating some consistent and objective measure of establishing a violation
of the cited standard. When the Inspector and the Petitioner’s expert witness
disagree on what the consistent and objective criteria should be in order to
determine compliance, the court finds it a violation of fair notice and due
process to hold the Respondent to a moving target. Accordingly, the Petitioner has failed to
carry its burden and Citations 6413382, 6413383, 6413384 and 6413385 will be
VACATED.
ORDER
Based upon the foregoing, it is
ORDERED that Citations 6413382, 6413383, 6413384 and 6413385 are VACATED.
________________________________________
Patrick
B. Augustine
Administrative
Law Judge
Date:
Denver,
Colorado