<DOC>
[DOCID: f:ke941199.wais]
BROKEN HILL MINING COMPANY
April 10, 1997
KENT 94-1199
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W., 6TH FLOOR
WASHINGTON, D. C. 20006-3868
April 10, 1997
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 94-1199
Petitioner : A. C. No. 15-14959-03561
:
v. : Docket No. KENT 97-1200
: A. C. No. 15-14959-03562
BROKEN HILL MINING COMPANY, :
Respondent : Docket No. KENT 95-240
: A. C. No. 15-14959-03569
:
: Docket No. KENT 95-310
: A. C. No. 15-14959-03570
:
: Mine No. 3
DECISION
Before: Judge Merlin
These matters are before me pursuant to the Commission's
order of remand dated March 14, 1997. These cases are petitions
for the assessment of civil penalties filed by the Secretary of
Labor against the operator under sections 105 and 110 of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. � � 815,
820. The case was assigned to an administrative law judge who is
no longer with the Commission.
By notice dated December 19, 1996, the judge set a hearing
for January 9, 1997. Commission records contain the return
receipt showing that the notice was received by the operator.
However, when the hearing was convened on the appointed day, the
operator failed to appear. The operator has not explained its
non appearance.
Section 2700.66 of Commission regulations, 29 C.F.R. �
2700.66 (1996), provides that when a party does not appear at a
hearing, the judge may find the party in default without issuing
a show cause order. Prior versions of this regulation required
the issuance of a show cause order whenever a party failed to
comply with a judge's order. 29 C.F.R. � 2700.63 (1991) (amended
1993). The comments to the present version make clear that
elimination of the requirement for a show cause order under these
circumstances was conscious and intentional. 55 Fed. Reg. 4853,
4856 (1990); 58 Fed. Reg. 12, 158 (1993).
In this case when it became obvious that the operator was
not going to appear, the Solicitor moved on the record for a
default judgment (Tr. 10). The judge stated that the motion was
well taken (Tr. 10). However, the judge then said that the
hearing would proceed with the testimony of the inspectors so
that "we'll have some factual basis to assess the penalty" (Tr.
13). Thereafter, the Solicitor elicited testimony from the
inspectors about the violations contained in the subject penalty
petitions (Tr. 21-84). After listening to the testimony
regarding each citation, the judge "affirmed" the citation (Tr.
38, 56-57, 69-70, 77-78, 85).
Section 2700.1(a) of Commission regulations, 29 C.F.R. �
2700.1(a), provides that the Commission and its judges shall be
guided so far as practicable by the Federal Rules of Civil
Procedure. Rule 55(a) of the Federal Rules of Civil Procedure
provides that when a party
against whom a judgment for relief is sought fails to plead or
otherwise defend, the party's
default may be entered. Under subparagraph (1) of Rule 55(b)
when a claim is for a sum certain the clerk of the court shall
enter a judgment for the amount due and under subparagraph (2) in
all other cases the party entitled to a judgment by default must
request it.
In applying Rule 55, the courts have stated that in a
default situation all well pleaded allegations are taken as true.
Benny v. Pipes, 799 F.2d 489, 495 (9th Cir. 1986), cert denied,
484 U.S. 870, 108 S. Ct. 198 (1987). And when a default judgment
is entered, facts alleged in the complaint may not be contested.
Black v. Lane, 22 F.3d 1395, 1399 (7th Cir. 1994). The standard
for appellate review of a default judgment is whether the trial
court committed an abuse of discretion. Johnson v. Gudmundsson,
35 F.3d 1104, 1117 (7th Cir. 1994). An entry of a default
judgment is not an abuse of discretion where a party who fails to
appear at a scheduled hearing, because such conduct strays from
recklessness to bad faith. Id. Moreover, pro se representation
does not excuse a party from complying with the court's orders or
the Federal Rules. Ackra Direct Marketing Corp. v. Fingerhut
Corporation, 86 F.3d 852 (8th Cir. 1996). Wilful misconduct by a
pro se litigant justifies entry of default even where the
judgment is for a large amount. Id. Finally, where a party is
put on notice of the amount of damages sought, he is not entitled
to an evidentiary hearing on damages. Taylor v. City of Baldwin,
Missouri, 859 F.2d 1330 (8th Cir. 1988). By it terms Rule 55
leaves the decision of whether a hearing on damages
is necessary to the discretion of the judge. Fustok v.
Conticommodity Services Inc., 873 F.2d 38 (2nd Cir. 1989).
Defaults have been analogized to dismissals for want of
prosecution. Hritz v. Woma Corporation, 732 F.2d 1178, 1184 (3rd
Cir. 1984). The Supreme Court has upheld such dismiss-
als. National Hockey League v. Metropolitan Hockey Club, 427
U.S. 639, 96 S. Ct. 2778 (1976); Link v. Wabash Railroad Company,
370 U. S. 626, 82 S. Ct. 1386 (1962). In National Hockey League,
the Court recognized that use of this sanction was not only
directed toward the particular conduct at issue, but also was
designed to deter similar conduct in the future. National Hockey
League, 427 at 643.
Section 110(a) of the Act, 30 U.S.C. � 820(a), provides that
a mine operator of a facility covered under the Act where a
violation of a mandatory health or safety standard occurs, shall
be assessed a civil penalty. The Secretary has the burden of
proving a violation. Keystone Coal Mining Corp., 17 FMSHRC 1819,
1838 (November 1995). Where a violation is proved, section
110(i), 30 U.S.C. � 820(i), sets forth six factors to be
considered in determining the appropriate amount of a civil
penalty as follows: gravity, negligence, prior history of
violations, size, ability to continue in business, and good faith
abatement.
Default judgments are not uncommon at the Commission. For
fiscal year 1996 the Office of the Chief Administrative Law Judge
entered defaults in 177 cases and for the first half of fiscal
year 1997 there have been 73 such defaults. The defaults were
entered by the Chief Judge because the operator either failed to
answer or respond to a show cause order. In all those cases the
facts set forth in the citations were accepted as true and the
violations determined to exist. The inspector's findings
regarding gravity and negligence were accepted as well as the
Solici-
tor's representations for the other four criteria set forth in
the petition and the operator was directed to pay the proposed
penalty.
In the instant cases the operator's failure to appear at the
hearing was more serious than the failures in the Chief Judge
defaults, because here the Government incurred the unnecessary
expense of travel by the Judge, Solicitor, and court reporter and
the fees of the reporter. In addition, the dereliction of this
operator is particularly egregious since he is completely
familiar with Commission procedures. He has appeared at hearings
on the merits. Broken Hill Mining, 17 FMSHRC 1548 (September
1995); 17 FMSHRC 1539 (September 1995); 17 FMSHRC 338 (March
1995), affirmed, 19 FMSHRC , No. KENT 94-1208 (April 9,
1997). He has been a party to settlements. Broken Hill Mining,
16 FMSHRC 1949 (September 1994). Nor is this the first time this
operator has ignored Commission procedure and orders. He has had
an appeal dismissed by the Commission for failure to file
necessary materials. Broken Hill Mining, 18 FMSHRC 679 (May
1996). And he previously failed to appear for a hearing. Broken
Hill Mining, 15 FMSHRC 515 (March 1993). I am, of course,
mindful that default is a harsh remedy. But this knowledgeable
operator has chosen to scorn the process.
In light of the foregoing, it is clear that immediate entry of
default for these cases would have been proper and that the judge
was not required to go on the record and take evidence regarding
the violations. If the statements in the citations are taken as
true, they establish the existence of the violations as well as the
presence of gravity, negligence and good faith abatement. The
printout submitted by the Solicitor shows the history of prior
violations. Financial information regarding ability to continue in
business is particularly within the province of the operator and it
has long been recognized that it is the operator's responsibility
to come forward with such evidence. Spurlock Mining Company and
Sarah Ashley Mining, 16 FMSHRC 697, 700 (April 1994); Sellersburg
Stone Co., 5 FMSHRC 287, 294 (March 1983). The Commission has just
now applied these principals to this very operator. Broken Hill
Mining, 19 FMSHRC , slip op. at 5. The same approach
would also appear to be applicable to size, if the operator wished
to use that factor to mitigate proposed penalty amounts.
In the present matters the judge purported to enter a default
judgment. However, he did
not accept as fact the matters set forth in the withdrawal orders
before him. Instead he took
evidence and appeared to decide the validity of the orders on the
merits based upon the testimony given by the inspectors. A
decision on the merits requires a finding with respect to the
existence
of a violation as well as findings on the six criteria which
section 110(i), supra, directs be
considered in reaching a penalty amount. The judge did not make
the necessary findings to
support his affirmance of the orders. Therefore, as directed by
the Commission I will make the appropriate findings.
Order No. 4003845
Order No. 4003845 charges a violation of 30 C.F.R. � 75.902
because the ground monitor circuit to a roof bolter had been
bridged out, rendering the monitor inoperative (Exh. No. 3).
The inspector described the condition and how the circuit which was
designed to prevent electrocutions had been intentionally defeated
(Tr. 23-26, 28). Based upon the foregoing, I find
a violation existed. According to the inspector if there were a
default, the machine would stay energized (Tr. 29). There was a
danger of fatal electrocution (Tr. 26-27, 31). Based upon the
foregoing, I find the violation was serious. The inspector stated
that the operator was aware of
the condition since the chief electrician, a member of mine
management, was present and
admitted that he knew what had been done (Tr. 30). Based upon the
foregoing, I find the
intentional bridging out demonstrated a reckless disregard for
safety and that therefore, the
operator was guilty of gross negligence. Such conduct was clearly
aggravated and constituted unwarrantable failure as that term has
been defined by the Commission. Emery Mining
Corporation , 9 FMSHRC 1997, 2004 (December 1987); Youghiogheny and
Ohio Coal Com-
pany, 9 FMSHRC 2007, 2010 (December 1987). Based upon data in the
order, I find that there
was good faith abatement. The print out of the operator's history
of prior violations shows that history is low. The record in these
cases contains no information regarding the operator's size.
As already set forth, I believe that the operator bears the
responsibility to produce evidence on
this factor if it is relevant to the amount of penalty. However,
in this instance I take judicial
notice that in a prior proceeding which was decided after hearing,
the operator was found to be
small. Broken Hill Mining Company, 17 FMSHRC at 345, affirmed, 19
FMSHRC ,
(April 9, 1997). I accept that finding for present purposes.
As has already been pointed out, financial information
regarding the operator's ability to continue in business is
peculiarly the operator's own. It is the operator's duty to
produce such
data if it bears upon possible mitigation of the penalty amount.
Even if it made sense to ask the Solicitor to come forward with
such evidence, he could not do so because he would have to
obtain it from the operator who has demonstrated his contempt for
Commission process. And
even if the Judge were to stray from his adjudicatory
responsibilities by issuing on his own
initiative order to produce data, his efforts would be fruitless
since the operator has shown he
will not comply. In a case involving other mines of this operator
the Commission approved the principle that in absence of proof that
the imposition of penalties would adversely affect an
operator's ability to continue in business, it is presumed that no
such adverse effect would occur. Broken Hill Mining Company, 19
FMSHRC , (April 9, 1997); Spurlock Mining Company, supra,
at 699-700; See also, Sellersburg Stone Co., supra, at 294.
Although in Spurlock this
operator submitted tax returns and balance sheets, the Commission
still held that he failed to introduce specific evidence to show
that the penalties would affect his ability to continue in
business. In light of the foregoing, ability to continue in
business is found to be non contributory
to a determination of an appropriate penalty amount.
After careful consideration of the foregoing, I conclude that
a penalty of $1,000 should
be assessed.
Order No. 4004145
Order No. 4004145 charges a violation of 30 C.F.R.
� 75.603 because improper
temporary splices were made in the trailing cable of a shuttle car
used to transport coal (Exh. No.
8). The inspector testified that he observed a splice in the
trailing cable with exposed power
wires (Tr. 41-42, 45). He actually saw the metal in the power wire
(Tr. 45). A splice is supposed
to restore the protective nature of the outer jacket so people will
not get electrocuted if they touch
the cable where it was spliced (Tr. 44). In the inspector's
opinion the splice was not made in a workmanlike manner as required
by the mandatory standard (Tr. 46). Based upon the foregoing,
I find a violation existed. According to the inspector, the cable
which supplied power to the
shuttle car had 480 volts, an amount sufficient to kill or injure a
miner (Tr. 42, 45). Based upon
the foregoing, I find the violation was serious. The inspector
testified that the operator's chief
electrician admitted he knowingly made the improper splices,
alleging he did not have the
materials necessary for a proper splice (Tr. 49). Based upon the
foregoing, I find that the
intentional making of a defective splice demonstrated a reckless
disregard for safety and that therefore, the operator was guilty of
gross negligence. Such conduct was clearly aggravated and
constituted unwarrantable failure as that term has been defined by
the Commission. Based upon
data in the order, I find there was good faith abatement. For the
reasons already set forth, I find
that prior history is low, the operator is small in size, and
ability to continue in business is non
contributory.
After careful consideration of the foregoing, I conclude that
a penalty of $2,500 should be assessed.
Order No. 4017905
Order No. 4017906
Order No. 4017907
Order No. 4017905 charges a violation of 30 C.F.R. � 75.400
because combustible materials such as loose coal spillage
underneath the conveyor belt were allowed to accumulate in the Nos.
3 and 5 neutral and the No. 4 conveyor belt entries where the No. 6
conveyor belt was installed. The order recites that beginning at
the conveyor belt the accumulations extended for approximately
2,000 feet inby the three named entries and that the certified
foreman and belt examiner knew of the condition and had recorded it
in the record book since January 3, 1994 (Exh. 9).
Order No. 4017906 charges a violation of 30 C.F.R. � 75.400
because combustible
materials such as loose coal and float coat dust were allowed to
accumulate beneath the No. 5
belt in the No. 4 entry and in the Nos. 3 and 5 neutrals. The
order recites that these accumula-
tions began at the No. 5 belt drive and continue for a distance of
2,500 feet including all
connecting crosscuts and that the certified foreman belt examiner
knew of the condition and had recorded it in the record book since
January 3, 1994 (Exh. 10).
Order No. 4017907 charges a violation of 30 C.F.R. � 75.400
because loose coal and float coal dust were allowed to accumulate
beneath the No. 4 conveyor belt in the No. 3 entry and the
No. 4 neutral entry and all connecting crosscuts and extended inby
to the No. 4 belt entry for a distance of approximately 400 feet
(Exh. 11).
The inspector testified at the same time about these three
orders. He explained that three different belts were involved in
the orders (Tr. 51-52). He observed pretty much the same
condition in all the areas cited in the orders (Tr. 52). At the
time he traveled the belt conveyors
from the underground section to the surface, the areas of the
neutral entries beside the belts were
black with float coal dust and loose coal was present underneath
the belts and in the belt entries
(Tr. 51). Based upon the foregoing, I find the violations existed.
According to the inspector,
there was a hazard of mine fires and explosions (Tr. 55). The belt
drives carry 480 volts of
electricity and the belt is a source of heat when it is running
(Tr. 55). An arc is created when the
belt starter kicks in and could ignite the float coal dust that was
present in or around the belt
control starter box and in the neutral entries (Tr. 55-56).
Extensive areas were involved in each
of the orders. Based upon the foregoing, I find these violations
were very serious. The inspector testified that the belt
examiner/foreman admitted he had been reporting these conditions in
his
record book but said that due to an alleged lack of manpower the
conditions were not corrected
(Tr. 54). The belt examiner/foreman was a member of mine
management (Tr. 54). Based upon
the foregoing, I find that the intentional failure over 2� months
to correct the cited conditions demonstrated a reckless disregard
for safety and that therefore, the operator was guilty of gross
negligence. Such conduct was clearly aggravated and constituted
unwarrantable failure as that
term has been defined by the Commission. Jim Walter Resources,
Inc., 19 FMSHRC , slip
op. at 6-10, No. SE 94-74 et al. (March 17, 1997). Based upon
data in the orders, I find there
was good faith abatement. For the reasons already set forth, I
find that prior history is low, the operator is small in size, and
ability to continue in business is non contributory.
After careful consideration of the foregoing, I conclude that
penalties of $5,500 should be assessed for each of these three
orders for a total of $16,500.
Order No. 3812856
Order No. 3812856 charges a violation of 30 C.F.R. � 75.203(a)
because the approved method of mining was not being complied with.
Excessive widths were present in the crosscut between the No. 3 and
No. 4 entries in that the crosscut was mined 23 to 27 feet wide for
a
distance of 18 feet. Also, pillar dimensions had been reduced in
the coal pillar block between the No. 6 and No. 7 entries to a
point where the pillar only measured nine feet thick. The section
was being mined on 50 by 40 centers which leave 20 foot coal
pillars. No additional support was installed (Exh. 12). The
inspector testified that there were 33 foot widths and 20 was the
maximum allowed (Tr. 63). He also said that the pillar is the most
important thing in the control
of the roof (Tr. 63). Based upon the foregoing, I find a violation
existed. According to the inspector, the roof was real weak and
especially weak in the crosscuts which were heavily
traveled (Tr. 63, 66). A fatal roof fall could have occurred (Tr.
67). Based upon this testimony,
I find the violation was very serious. The inspector stated that
the excessive widths could have
been seen by anybody and should have been apparent to the foreman
who was responsible for the section (Tr. 66-67). Based upon the
foregoing, I find that negligence was high and that the
operator's conduct was aggravated and constituted unwarrantable
failure as that term has been
defined by the Commission. Based upon data in the order, I find
there was good faith abatement.
For the reasons already set forth, I find that prior history is
low, the operator is small in size, and ability to continue in
business in non contributory.
After careful consideration of the foregoing, I conclude that
a penalty of $2,000 should be assessed.
Order No. 4012283
Order No. 4012283 charges a violation of 30 C.F.R. � 75.202(b)
because the preshift examiner traveled inby roof support while
making his preshift examination. The order recites that date, time
and examiner's initials were painted inby the last row of roof
supports (Exh. 14). The inspector testified that he was traveling
and observed dates, times and initials placed inby roof supports
(Tr. 73). Any area examined must be indicated by dates, times and
initials (Tr. 74). He issued the violation for persons being
beyond the last row of roof bolts (Tr. 74). Based upon the
foregoing, I find a violation existed. According to the inspector,
the unsupported roof could have collapsed and caused a fatality
(Tr. 77). He said that going inby roof supports is the major cause
of roof fatalities (Tr. 77). Based upon this testimony, I find the
violation was serious. The
inspector stated that the preshift examiner was the third shift
maintenance foreman and that therefore, he was a representative of
the operator who had the responsibility to see that such conditions
did not exist with respect to anyone, much less himself (Tr. 76).
Based upon the foregoing, I find that negligence was high and that
the operator's conduct was aggravated and constituted unwarrantable
failure as that term has been defined by the Commission. Based
upon
data in the order, I find there was good faith abatement. For the
reasons already set forth, I find
that prior history is low, the operator is small in size, and
ability to continue in business is non contributory.
After careful consideration of the foregoing, I conclude that
a penalty of $2,500 should be assessed.
Order No. 4012344
Order No. 4012344 charges a violation of 30 C.F.R. �
75.220(a)(1) because the approved roof control plan which states
that three rows of bolts must be installed before mining in a
crosscut, was not being complied with. The order recites that the
right crosscut had been cut 13� feet deep and the left crosscut
also was partially cut, but that the roof had not been supported
(Exh. 15). The inspector testified that the plan provides that
mining could not take place in the cited area without three rows of
roof bolts being installed and he described how the crosscuts had
been cut (Tr. 81-82). Based upon the foregoing, I find that a
violation existed. According to the inspector the roof was
very weak because it did not have the required bolts (Tr. 84).
People were exposed to this roof (Tr. 82). Based upon this
testimony, I find the violation was serious. The inspector also
stated that the condition was apparent and should have been
observed by the section foreman (Tr. 83). Based upon the
foregoing, I find that negligence was high and that the operator's
conduct was aggravated and constituted unwarrantable failure as
that term has been defined by the Commission. Based upon data in
the order, I find there was good faith abatement. For the reasons
already set forth, I find that prior history is low, the operator
is small in size, and ability to continue in business is non
contributory.
After careful consideration of the foregoing, I conclude that
a penalty of $1,800 should be assessed.
ORDER
It is ORDERED that the findings of a violation for Order Nos.
4003845, 4004145,
4017905, 4017906, 4017907, 3812856, 4012283, and 4012344 be
AFFIRMED.
It is further ORDERED that the unwarrantable failure findings
for Order Nos. 4003845, 4004145, 4017905, 4017906, 4017907,
3812856, 4012283, and 4012344 be AFFIRMED.
It is further ORDERED that Order Nos. 4003845,
4004145, 4017905, 4017906, 4017907, 3812856, 4012283, and 4012344
issued under Section 104(d)(2) be AFFIRMED.
It is further ORDERED that penalties be ASSESSED as follows:
Order No. Penalty
4003845 $1,000
4004145 $2,500
4017905 $5,500
4017906 $5,500
4017907 $5,500
3812856 $2,000
4012283 $2,500
4012344 $1,800
It is further ORDERED that the operator PAY the above sums,
totaling $26,300, within 30 days of the date of this decision.
Paul Merlin
Chief Administrative Law Judge
Distribution:
Thomas A. Grooms, Esq., Office of the
Solicitor, U. S. Department of Labor,
2002 Richard
Jones Road, Suite B-201, Nashville,
TN 37215-2862 (Certified Mail)
Hobart W. Anderson, President, Broken
Hill Mining Company, Inc., P. O. Box
356, Sidney, KY 41564 (Certified
Mail)