<DOC>
[DOCID: f:ct9982.wais]
MIDWEST MINERALS, INC.
July 6, 1999
CENT 99-82-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 Skyline, Suite 1000
5203 Leesburg Pike
Falls Church, Virginia 22041
July 6, 1999
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 99-82-M
Petitioner : A. C. No. 14-01463-05510
v. :
: Portable Plant No. 2
MIDWEST MINERALS, INC., :
Respondent :
DECISION
Before: Judge Hodgdon
This case is before me on a Petition for Assessment of
Civil Penalty filed by the Secretary of Labor, acting through
her Mine Safety and Health Administration (MSHA), against
Midwest Minerals, Inc., pursuant to section 105 of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. � 815. The
petition alleges two violations of the Secretary=s mandatory
health and safety standards and seeks a penalty of $37,000.00.
For the reasons set forth below, I affirm the citations and
assess a penalty of $20,750.00.
Citation No. 7925924 was the subject of a contest
proceeding. In a decision following a hearing, the citation
was modified from a 104(d)(1) citation, 30 U.S.C. � 814(d)(1),
to a 104(a) citation, 30 U.S.C. � 814(a), by deleting the
"unwarrantable failure" designation. Midwest Minerals,
Inc., 21 FMSHRC 301 (March 1999). The modified citation was
affirmed as being "significant and substantial," but, because
it was not necessary to the decision, no determination was made
concerning the level of negligence. Id. at 306 n.3. The decision
was not appealed and has now become final.
The parties have agreed to settle Citation No. 7925923,
which alleges that the company violated section 50.10 of the
Secretary's regulations, 30 C.F.R. � 50.10, because: "On June
22, 1998, at 1425 hours, a plant superintendent suffered serious
multiple injuries which had the potential to cause death. The
accident was not reported until June 23, 1998, at 1025 hours.
The accident was not immediately reported to MSHA as required.
The victim died on 7/20/98 as a result of his injuries."
Section 50.10 requires that: "If an accident occurs, an
operator shall immediately contact the MSHA District or
Subdistrict Office having jurisdiction over its mine." The
Secretary has agreed to reduce the penalty for this violation
from $2,000.00 to $750.00 because "[p]reparation for the
hearing has revealed that the negligence . . . was less than
originally assessed."
With regard to Citation No. 7925924, the parties have
entered into stipulations and submitted briefs setting out their
positions as to what the penalty should be. The Secretary
continues to assert that the proposed penalty of $35,000.00 is
appropriate. The company argues that it should be substantially
reduced.
Civil Penalty Assessment
It is the judge's independent responsibility to
determine the appropriate amount of penalty in accordance
with the six penalty criteria set out in section 110(i) of
the Act, 30 U.S.C. � 820(i). Sellersburg Stone Co. v. FMSHRC,
736 F.2d 1147, 1151 (7th Cir. 1984); Wallace Brothers, Inc.,
18 FMSHRC 481, 483-84 (April 1996). Concerning civil penalties,
section 110(i) provides that:
In assessing civil monetary penalties, the
Commission shall consider the operator's history
of previous violations, the appropriateness
of such penalty to the size of the business of the
operator charged, whether the operator was negligent,
the effect on the operator's ability to continue
in business, the gravity of the violation, and the
demonstrated good faith of the person charged in
attempting to achieve rapid compliance after
notification of the violation.
The facts, such as they are, are set out in detail in
the contest decision. Midwest Minerals, 21 FMSHRC at 301-03.
Briefly stated, William F. Feathers, the 67 year old
superintendent of Midwest's Portable Plant No. 2, suffered
injuries that ultimately proved fatal while attempting to
start a 1955 Caterpillar D-7 bulldozer. Other than Feathers,
there were no witnesses to the accident. The only statement
that Feathers made concerning the accident was: "Someone
must have put it in reverse." Id. at 302.
In connection with the penalty criteria, the parties
have stipulated that: (1) the operator demonstrated good
faith in abating the violation; (2) Portable Plant No. 2 had
45,479 hours worked, and Midwest Minerals, Inc., had 143,178
hours worked, in 1997; and, (3) Midwest Minerals' ability to
continue in business would not be affected if the maximum
penalty of $55,000.00 were to be assessed. From this, I find
that Midwest demonstrated good faith in attempting to abate the
violation; that while Portable Plant No. 2 is a small operation,
Midwest is a medium size operation; and, that Midwest's ability
to remain in business will not be affected by any penalty that
may be adjudged in this case.
Based on Midwest's violation history, I find that the
company has a very low history of prior violations.
Considering the fact that this violation was "significant
and substantial" and resulted in a death, I find that its
gravity is very serious.
That leaves negligence to be considered. In the contest
case, I concluded that the violation "involved negligence of
some degree," but that, because of the lack of evidence, it
was not possible to conclude that the negligence rose "to the
level of an 'unwarrantable failure.' " Id. at 306. Thus, the
negligence is either "low" or "moderate." From his statement
at the time of the accident that someone must have left the
bulldozer in reverse, I infer that Feathers did not check to
make sure that the bulldozer was not in gear when he started
the pony motor. Feathers had been operating the bulldozer for
three years, had never started it in gear before, and should
have known better. Accordingly, I conclude that he was
"moderately" negligent.
Midwest contends that Feathers' negligence cannot be
imputed to it under the so-called Nacco defense. The Commission
has summarized the imputation of negligence and the Nacco
defense as follows:
It is well established that the negligent
actions of an operator's foremen, supervisors, and
managers may be imputed to the operator in
determining the amount of a civil penalty. See,
e.g., Southern Ohio Coal Co., 4 FMSHRC 1459, 1463-64
(August 1982). In Nacco Mining Co., 3 FMSHRC 848
(April 1981), the Commission recognized a narrow
and limited exception to this principle. The
Commission held that the negligent misconduct of a
supervisor will not be imputed to an operator if:
(1) the operator has taken reasonable steps to
avoid the particular class of accident involved
in the violation; and (2) the supervisor's erring
conduct was unforeseeable and exposed only himself
to risk. 3 FMSHRC at 850. The Commission emphasized,
however, that even a supervisory agent's
unexpected, unpredictable misconduct may result in
a negligence finding where his lack of care exposed
others to risk or harm or the operator was otherwise
blameworthy in hire, training, general safety
procedures, or the accident or dangerous condition
in question. 3 FMSHRC at 851.
Wilmot Mining Co., 9 FMSRHC 684, 687 (April 1987).
I find that the Nacco defense is not applicable in this
case. While the evidence at the hearing established that
Midwest had taken reasonable steps to avoid the particular
class of accident involved in the violation and that Feathers'
conduct was unforeseeable, it did not show that Feathers
exposed only himself risk. The out-of-control bulldozer
traveled 126 feet in reverse, striking Feathers' pick-up truck
and coming to rest against the plant fence after crossing the
main entrance road to the plant. Fortunately, no one was on the
road at the time, although the road is used by both customers
and employees. In addition, Floyd Ash, who saw the bulldozer
when he heard it hit the pick-up, testified that his first
intent was to attempt to stop the bulldozer.
Clearly Feathers' lack of care exposed others to the
risk or harm of being struck by the bulldozer. See Rochester
& Pittsburgh Coal Co., 13 FMSHRC 189, 198 (February 1991).
Accordingly, I conclude that Feathers' negligence is imputable
to Midwest.
Taking all of the penalty criteria into consideration,
I conclude that a penalty of $20,000.00 is appropriate for
Citation No. 7925924 and the agreed on penalty of $750.00 is
appropriate for Citation No. 7925923.
Order
The citations are AFFIRMED and Midwest Minerals, Inc.,
is ORDERED TO PAY a civil penalty of $20,750.00 within 30 days
of the date of this decision.
T. Todd Hodgdon
Administrative Law Judge
Distribution:
Mark Nelson, Esq., Office of the Solicitor, U.S. Department
of Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
(Certified Mail)
Karen L. Johnston, Esq., Jackson & Kelly, 1660 Lincoln
Street, Suite 2710, Denver, CO 80264 (Certified Mail)
/nj