FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 NEW JERSEY AVENUE, N.W., SUITE 9500
WASHINGTON, D.C. 20001
July 19, 2007
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 2007-115-M
Petitioner : A.C. No. 14-01650-105541
:
v. :
:
HIGGINS STONE, INC., : Higgins Stone, Inc.
Respondent :
DECISION
Before: Judge Barbour
This case concerns a proposal for assessment of a civil penalty filed pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of 1977. 30 U.S.C. §§ 815, 820 (Mine Act or Act). The proposal seeks $1,769.00 for an alleged violation of the mandatory occupational noise exposure standard found at 30 C.F.R. § 62.130(a).
The standard requires each operator to assure no miner is exposed during any work shift to noise that exceeds the permissible exposure level (PEL).
The parties agreed to numerous stipulations, which, inter alia, establish the Commission’s jurisdiction, the fact of violation and almost all of the statutory civil penalty criteria. See Sec’s Brief in Support of Motion for Summary Decision (Sec’s Br.), Exh. A, Joint Stipulations. In addition, the Secretary moved for summary decision. Sec’s Motion for Summary Decision Based on Stipulated Facts and Attached Brief (Sec’s Mot.). Under the Commission’s rules a summary decision motion may be granted if “there is no genuine issue as to any material fact; and . . . the moving party is entitled to summary decision as a matter of law.” 29 C.F.R. §§ 2700.67(b)(1), 2700.67(b)(2).
Before ruling on the motion, it is necessary to set forth fully the parties’ stipulations and their factual assertions.
THE JOINT STIPULATIONS
The stipulations are as follows:
1. Higgins Stone, Inc. [Higgins or the company] is engaged in
mining operations in the United States, and its mining operations
affect interstate commerce.
2. [Higgins] is the operator of the . . . [subject mine].
3. [Higgins] is subject to the jurisdiction of the . . . [Act].
4. The . . . Commission and the assigned Administrative Law
Judge . . . have jurisdiction over this matter.
5. MSHA Inspector Chrystal A. Dye conducted a regular
inspection of the . . . [mine] on June 28, 2006. She conducted
a full-shift noise sample on the hydro splitter operator working in
the splitter shed . . . and issued Citation No. 6332898 as a result
of . . . the noise sampling.[
The hydro splitter is a mechanism used to split and shape stone. Sec.’s Mot., Exh. B. at 1, ¶ 2.
indicated exposure of the [splitter] operator to a[n] . . . exposure
level . . . of 326.5%. [T]his was in excess of the . . . (PEL) of 132%.
6. [Higgins] violated [section] 62.130(a) as alleged in Citation No.
6332898. The abatement time was set for July 28, 2006.
7. [The citation] . . . and [the subsequent] continuations [of the
citation] were properly served . . . upon an agent of [Higgins] . . .
on the date and place stated therein.
8. On August 15, 2006, Inspector Dye went back to [the mine]
. . . and re-sampled the splitter operator. Prior to her arrival . . .
[Higgins] had run the mufflers of both splitters in the splitter
shed through the roof and had built a wooden frame around the
motor in order to shield the motor with Plexiglass. On that date,
the dosimeter readings came in at 341.50% (again in excess of
the PEL set in . . . [section] 62.130(a)[)]. Inspector Dye granted
an extension to . . . [Higgins] to try more engineering or
administrative controls.
9. On September 20, 2006, . . . Dye went to . . . [the mine] to
check on abatement. Dosimeter readings after a full shift
sample of the splitter operator showed a PEL of 226.50[%].
Between August 15, 2006, and September 20, 2006 . . .
[Higgins] had not tried any additional measures. While
Inspector Dye was on the mine site, Scott Wichman, Plant
Operator, took the smaller splitter out of operation, covered
the motor with blankets, and called the CAT dealer to see
about having a sound absorbent compartment built to house
the motor. Based on these actions . . . Dye granted a second
extension of the abatement date (until October 20, 2006).
Dye informed . . . [Higgins] no further extensions would be
granted.
10. On November 9, 2006, . . . Dye conducted a full shift
noise sample and issued [section] 104(b) Order No.
6332985 when no apparent further efforts had been taken
to reduce noise (i.e., the CAT operation had not built the
noise absorbing compartment).[
Section 104(b) provides in part, if an inspector: finds (1) that a violation described in a citation . . . (a) has not been totally abated within the time as originally fixed . . . or as subsequently extended, and (2) that the period of time for the abatement should not be further extended, he [or she] shall . . . promptly issue a [withdrawal] order. 30 U.S.C. § 814(b).
\
11. On November 14, 2006 . . . Dye terminated Order No.
6332985 . . . [Higgins] had built a sound absorbent en-
closure around the splitter motor and her dosimeter reading
came in at a permissible PEL of 62.150%.
12. The penalty issued for the citation . . . will not affect . . .
[the company’s] ability to continue in business.
13. The information contained on . . . [MSHA’s] . . .
[Assessment] Data Sheet accurately reflects the number
of violations issued to . . . [Higgins] and the number
of inspection days from October 17, 2005 (the date on which
. . . [Higgins] began its operations), to December 2006.
14. MSHA Form [No.] 1000-179, which reflects the points
that were used to formulate the assessment at issue, accurately
depicts points attributable to . . . [the company’s] size; the
history of previous violations; negligence; and gravity. The
total number of points, 9550, was used to compute the pen-
alty of $1,769.00. [Higgins] does not stipulate to the 10
points added for lack of good faith and does not agree
with the failure to allow an allowance of a 30% penalty
reduction for good faith abatement [emphasis in original].
Sec.’s Br., Exh. A.
AFFIDAVIT
An affidavit from Inspector Dye is attached to the Secretary’s brief. Sec’s Br., Exh. B. In the affidavit, which tracks the stipulations, Dye states, on June 28, 2006, she conducted a full shift-noise sample on the operator of the larger of the two splitters in the splitter shed. Sec’s Mot., Exh. B at 1-2, ¶ 3. The smaller splitter was pushed up against the larger splitter, end-to-end. Therefore, the sampled splitter operator was exposed to the noise from both splitters. Id. At the time of the sample, the splitter operator was enrolled in a hearing conservation program and was wearing hearing protection. The sample revealed the splitter operator was exposed to a dosimeter reading of 326.5% that equated to 98.5 dBA, which was a violation of section 62.130(a). Id. at 2, ¶ 2. Inspector Dye further states, 30 days is the maximum abatement time for health violations, and she allowed Higgins the full 30 days to install all feasible engineering and administrative controls. Id. at 2-3, ¶ 4.
Dye maintains she returned to the mine after more than 30 days had run, and although
Higgins had redirected the noise from the splitters and built a frame to enclose the motor with
plexiglass, a noise sample revealed continued non-compliance. Therefore, she extended the
abatement time to September 15, to allow the company “to try some more engineering or
administrative controls.” Sec’s Mot., Exh. B at 3, ¶ 5. When she returned to the mine on
September 20, a full shift noise sample on the splitter operator revealed continued non-compliance. She also maintains no work had been done on reducing the noise between August
15 (the date of her prior visit) and September 20. Dye states she warned the plant manager she
would issue a closure order for failure to abate, and the manager responded by taking the smaller
splitter out of service and by wrapping blankets around the larger splitter’s engine. This lowered
the dBA, but the noise level was still non-compliant. The manager then arranged for a contractor
to build a sound absorbent compartment for the splitter’s engine.
I assume the “contractor” is the “CAT dealer” referenced in the stipulations. See Sec’s Br., Exh. A, ¶ 9.
THE SECRETARY’S POSITION
The Secretary argues the stipulations establish the appropriateness of MSHA’s proposed penalty of $1,769.00. In particular, the record supports finding Higgins failed to take timely action to abate the violation. Sec’s Br. 2.
THE COMPANY’S POSITION
Rather than file a brief, the representative of the Respondent indicates the company relies on paragraph 14 of the stipulations, in which the company states in part, “Respondent does not stipulate to the 10 points added for lack of good faith and does not agree with the failure to allow an allowance of a 30% reduction for good faith abatement.” (bold type face omitted); See e-mail from Sec’s counsel to ALJ (June 27, 2007). The company’s position is consistent with its answer to the petition, wherein it stated:
We were aware . . . the noise in the [s]plitter [s]hed would
require the employees that operate the equipment to
wear hearing protection at all times as well as [to
participate] in . . . [a] Hearing Conservation Program
[HCP]. Both of these necessities were complied with.
However, we were not aware . . . the noise level, even
with the hearing protection and HCP in place, was at
the level measured by the inspector. We underst[an]d
. . . our unawareness [sic] is no excuse, so since the
noise level discovery was made, we have made several
attempts to buffer the noise and [we have] spent count-
less dollars and hours to fix the problem. We feel we
have done our best to comply with MSHA regulations
and we [feel] . . . we should have received more credit
towards . . . [the] “Good Faith” [abatement]. . . [penalty
criteria].
Letter to Federal Mine Safety and Health Review Commission (April 6, 2007).
RULING
The motion is GRANTED IN PART.
The parties agree Higgins violated section 62.130(a) as alleged. Sec’s Br., Exh. A, ¶ 6. A violation having been found, a penalty must be assessed. The Commission has made clear the duty of a judge is to assess penalties de novo based on the statutory civil penalty criteria. The judge is not required to give “equal weight . . . to each of the penalty . . . criteria.” Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (September 1997). Rather, the judge must qualitatively analyze each of the penalty criteria to determine the appropriate civil penalty. Cantera Green, 22 FMSHRC 616, 625-626 (May 2000). While I agree with the Secretary with respect to almost all of the penalty criteria, my conclusions concerning the company’s attempts at good faith abatement lead me to assess a penalty lower than the one she has proposed.
With regard to the penalty criteria, based on Stipulation 13, I find Higgins has a small history of previous violations. Sec’s Pet’n, Exh. A, ¶ 13. There was no stipulation regarding the size of the company, but the Secretary asserts Higgins is small in size, the company does not argue otherwise, and I so find. Sec’s Pet’n, Exh. A. The Secretary also asserts the violation was due to moderate neglect on the company’s part, Higgins does not disagree, and I so find. Citation No. 6332898. Further, based on stipulation 12, I find any penalty assessed will not affect the company’s ability to continue in business. Sec’s Br., Exh. A, ¶ 12. While there is no stipulation regarding the gravity of the violation, the Secretary asserts the violation was unlikely to result in a permanently disabling injury to the affected splitter operator, and Higgins does not argue otherwise. Citation No. 6332898. I, therefore, find the violation was not serious.
Finally, I conclude the company is entitled to more credit for its abatement efforts than the Secretary is prepared to give. As the company points out (and as the citation states), the splitter operator was required to wear ear protection and to participate in an HCP program. Letter (April 26, 2007); Citation No. 6332898. I conclude from this the company was mindful of the danger of exposure to excessive noise and was trying to minimize the hazard. I further note, as the inspector’s extensions of the citation and her affidavit establish, the company took what appear to have been reasonable steps to come into compliance. It relocated the mufflers of the subject engines (Citation No. 6332898-02; Sec’s Br., Exh. B, ¶ 5); it moved the smaller splitter; it muffled the larger splitter’s engine; and it arranged for the building of a sound absorbent compartment around the larger splitter (Citation No. 6332898-03; Sec’s Br., Exh. B, ¶ 6). The Secretary’s determination the company lacked good faith seems have been based on the fact the sound absorbent compartment was not built when the inspector went to the mine on November 9, and on the fact three weeks passed during which the company and the contractor had not been in contact. Inspector Dye also seems to have been frustrated she or a company representative could not reach the contractor “to confirm any information.” Sec’s Br., Exh. 4.
Good faith is a matter of degree. When abatement requires a series of steps, a determination of the degree to which the operator exhibits good faith in attempting to achieve compliance should be made in the context of all the operator did and is doing. The determination should not be based solely on the fact abatement has not been accomplished within the time as set or extended. In fact, an operator may fail to comply within the time set by the inspector, be subject to a section 104(b) order, yet the operator may still have exhibited a degree of good faith in trying to comply. In other words, the issuance of a section 104(b) order is not necessarily incompatible with finding a degree of good faith on the operator’s part.
Here, Higgins did several things as it tried to bring down the noise level to which the splitter operator was subjected. It was not successful within the time set by the inspector, and Dye issued a “failure to abate order” in the face of the company’s unexplained three-week lapse of contact with those trying to help it attain compliance. Yet the company’s various efforts, upon which its ultimate compliance was based, warrant full consideration and credit when its good faith is evaluated for penalty purposes. For these reasons, I find Higgins did not totally fail to make a good faith effort to achieve rapid compliance but, rather, it exhibited a moderate degree of good faith toward attaining compliance. In view of this finding and all of the other statutory civil penalty criteria, I conclude a penalty of $1,000.00 is appropriate.
ORDER
Higgins is ORDERED to pay a civil penalty of $1,000.00 within 30 days of the date of this decision, and upon payment of the penalty, this matter is DISMISSED.
David F. Barbour
Administrative Law Judge
(202) 434-9980
Distribution: (Certified Mail)
Lydia Tzagoloff, Esq., U.S. Department of Labor, Office of the Solicitor, P.O. Box 46550, Denver, CO 80201-6550
Holly Higgins, Higgins Stone, Inc., 4826 S.W. Topeka Blvd., Topeka, Kansas 66610
/ej