.
WALLACE BROTHERS, INC.
April 12, 1996
WEST 94-710-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
April 12, 1996
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 94-710-M
Petitioner : A.C. No. 45-03085-05512
:
v. : Wallace Portable Crusher #1
:
WALLACE BROTHERS, INC., :
Respondent :
DECISION ON REMAND
Before: Judge Amchan
Commission Remand
On August 9, 1995, I assessed civil penalties of $1,300
each for Respondent's failure to timely abate two non-
significant and substantial (S&S) violations. One involved
the guarding of a self-cleaning tail pulley and the other
the guarding of a v-belt drive. I calculated the penalty
by multiplying a $50 penalty for the original citations
by the 26 days that Respondent failed to abate within
the time specified in the citations. I concluded that
this was an appropriate penalty considering the criteria
set forth in section 110(i) of the Act, 17 FMSHRC 1380,
1383.
On April 2, 1996, the Commission remanded this case
to me with instructions to (re)consider the section
110(i) criteria and make findings of fact with respect to
each of them.
Findings of Facts
On May 11, 1994, MSHA representative Rodney Ingram
issued two non-S&S citations to Respondent alleging
violations of 30 C.F.R. �56.14107(a), which requires the
guarding of moving machine parts. Citation No. 4129345
alleged that the standard was violated in that a 5-inch
x 8-inch gap existed in the guard of the self-cleaning
tail pulley on Respondent's portable crusher (Tr. 15-20).
Citation No. 4129346 alleged that the back side of a
v-belt drive on the same crusher was unguarded(Tr. 22-28,
Exhs. R1-R5). Ingram asked Respondent's foreman, Dan
Fisher, if two days would be sufficient to abate these
violations. Fisher indicated that it would be
sufficient. The inspector therefore set May 13, 1994,
as the date by which abatement or termination of the
violations was required (Tr. 20, 28).
On June 8, 1994, Ingram returned to the Respondent's
worksite. Four citations issued the month before had
not been timely abated. With regard to two citations,
Ingram extended the abatement or termination date. For
one, an electrical grounding violation, Ingram accepted
Respondent's explanation that it had contacted an
electrician, but that the electrician had not been
able to come out to the crusher (Tr. 37). Ingram
also extended the abatement period for a citation
issued for a supervisor's lack of first-aid training.
He accepted Fisher's representation that he was
having trouble scheduling the class (Tr. 42).
Fisher told Inspector Ingram that he forgot about
the guarding citations (Tr. 38-40). Ingram issued
Respondent two section 104(b) withdrawal orders (Nos.
4129356 and 4129357) for its failure to timely correct
these violations. When Ingram returned to the crusher
on June 9, these violations were abated (Tr. 43-47).
MSHA subsequently proposed a $1,500 civil penalty for
each of the citations/section 104(b) orders[1].
A civil penalty of $1,300 is assessed for each
of the citations/section 104(b) orders.
Respondent does not contest that the standards were
violated on May 11, 1994, nor that these violations were
not corrected Rather, it contends that the proposed
civil penalties are too high, considering the penalty
criteria in the Act and MSHA's regulations regarding
penalty calculations at 30 C.F.R. Part 100.
**FOOTNOTES**
[1]: Although the proposed penalty assessment
lists only the numbers of the section 104(a) citations,
the document and attached narrative clearly indicate
that the penalties are for the section 104(b) orders
as well. Any confusion in this regard was eliminated
by the Secretary's May 5, 1995 prehearing exchange.
Wallace Brothers points to the fact that it purchased
the crusher on which the two violations occurred in
1966 (Tr. 84). The crusher had been inspected by
MSHA many times prior to May 1994, and none of the
inspectors had previously indicated that the inside of
the v-belt drive needed to be guarded. Respondent
does not know how long the gap in the tail pulley
guard existed prior to the citation (Tr. 84-85).
Utilizing MSHA's regulations for proposing civil
penalties, Respondent argues that penalties of $210
and $159 should be assessed, rather than those proposed
by the Secretary. However, in a contested civil
penalty assessment case, the Commission is not
bound by MSHA's penalty assessment regulations or
practices. The Commission assesses penalties de
novo by applying the statutory criteria set forth
in section 110(i) of the Act to the evidence of
record, Sellersburg Stone Company, 5 FMSHRC 287,
292 (March 1983).
Moreover, an operator's failure to timely correct
a citation warrants a substantially greater penalty
than the citation itself. This is reflected in section
110(b) of the Act, which authorizes the Secretary
to propose and the Commission to assess a penalty
of up to $5,000 a day for each day during which
failure to correct a violation continues[2].
The daily penalty for failure to abate orders
provides a powerful disincentive for ignoring the
abatement requirement of a citation or order. An
unabated violation constitutes a potential threat
to the health and safety of miners, Legislative
History of the Mine Safety and Health Act of 1977,
at page 618.
It is one thing to overlook an MSHA violation
before a citation or order is issued and another to
ignore it after a citation has been issued. Given the
number of inspectors, the Act relies, to a great
extent, on the mine operator to discover and correct
safety and health hazards and to timely correct
cited violations. Particularly, in instances in
which abatement is not required immediately, it is
critical that the operator abate within the reasonable
time period set forth in the citation. This is so
because the inspector is unlikely to be present on
the day on which abatement is required.
Upon discovering a failure to abate, an inspector must
apply a rule of reason in determining whether to issue a
section 104(b) order or to extend the abatement date,
Martinka Coal Co., 15 FMSHRC 2452 (December 1993). In
the instant case, Inspector Ingram gave Respondent the
benefit of any reasonable doubt by extending the
abatement period for two citations. He accepted
at face value the excuses of Respondent's foreman. It
certainly was reasonable for him not to extend the abatement
period for the other two citations for which Respondent had
no excuse.
To assess a civil penalty of the magnitude suggested by
Respondent is to invite dilatory conduct by some operators
in timely abating citations and orders. A daily penalty, on
the other hand, serves as a warning that such conduct will
not be tolerated either by MSHA or the Commission. I
therefore assess a $1,300 penalty for each of the guarding
citations/section 104(b) orders in accordance with the
following factual findings regarding the section 110(i)
criteria:
Operator's history of previous violations: The record
indicates that Respondent had not been cited for any
violations within the 24 months prior to the instant
citations. It apparently had received MSHA citations prior
to this. I conclude that Respondent's prior history
provides no reason to assess a penalty either higher or
lower than should otherwise be assessed given the other
statutory criteria.
The appropriateness of the penalty to the size of the
business of the operator charged: Respondent is a small
mine operator, which worked slightly more than 10,000 hours
in 1993. This factor leads me to assess a smaller penalty
than I would if Respondent was a much larger operator.
The Respondent's negligence: Inspector Ingram deemed
Respondent to be moderately negligent with regard to the
original violations. He concluded that they should have
been detected by Respondent during Wallace's daily workplace
exam.
**FOOTNOTES**
[2]: The maximum daily penalty for a section 104(b) violation
was increased from $1,000 to $5,000 by Public Law 101-508,
Title III, �3102,(November 1990).
I credit the testimony of Respondent's President that his
crusher had been inspected prior to June 1994 and that none
of the MSHA inspectors who looked at the crusher before
Inspector Ingram had suggested the inside of the v-belt had
to be guarded (Tr. 84) The self-cleaning tail pulley had
been provided with a guard as the result of an inspection
several years prior to June 1994 (Tr. 86). Respondent's
President did not know how long the gap in the guard cited
by inspector Ingram had been present (Tr. 85).
I would characterize Respondent's negligence with
regard to the initial citations as low to moderate.
Wallace's negligence with regard to the initial citations
would warrant a relatively low civil penalty assuming other
penalty criteria would not warrant a higher penalty. On the
other hand, Respondent's negligence with regard to the
failure to abate orders is very high and warrants a much
higher penalty than the initial citations.
The demonstrated good faith of the person charged in
attempting to achieve rapid compliance after notification of
the violation.
On May 11, 1994 two citations were issued to Respondent with
a termination date of May 13, 1994. When inspector Ingram
saw the crusher again on June 8, 1994, these violations had
not been corrected.
Foreman Dan Fisher's explanation that he forgot about the
violations demonstrates a lack of good faith in attempting
to achieve compliance with the Act. Mr. Fisher was a
supervisory employee, therefore his acts and omissions are
imputable to Respondent for purposes of assessing a civil
penalty, Southern Ohio Coal Co., 4 FMSHRC 1459, 1464 (August
1982).
The manner in which Respondent's lack of good faith in
timely abating the original citations should be addressed in
assessing penalties is set forth in section 110(b) of the
Act. This section provides for a penalty for each day
during which a violation continues unabated. Therefore, I
multiply the penalty I would have assessed for the original
citation by the number of days that Respondent failed to
abate.
The effect on the operator's ability to stay in business.
There is no evidence in the record that would indicate that
a penalty of $2,600 for the two failure to abate orders
would compromise Respondent's ability to continue in
business. Therefore, it is presumed that these penalties
would have no such effect, Sellersburg Stone Co., 5 FMSHRC
287 at 294 (March 1993).
The gravity of the violations. Injury from the gap in the
guard on the self-cleaning tail pulley was unlikely because
miners would rarely be near it (Tr. 15-18). However,
injury was possible and could be very serious, possibly
resulting in the loss of a limb (Tr. 18, 72, 82).
Similarly, it was possible but unlikely that a miner would
be injured due to the lack of guarding of the inside of the
v-belt drive (Tr. 22-27,72, 82). Injuries if they were to
occur were likely to be in the nature of broken fingers and
cuts (Tr. 24).
The appropriate civil penalty
Based on consideration of the above-mentioned statutory
criteria, I find that $50 is an appropriate penalty for each
of the original citations in this case. However, taking
into account Respondent's negligence and lack of good faith
in rapidly abating these violations, I find that a daily
penalty of $50 is appropriate for each day that they
remained unabated after the termination date. Thus, I
assess a civil penalty of $1,300 for each of the section
104(b) orders.
ORDER
Citation No. 4129345 and section 104(b) Order No. 4129356
are affirmed and a $1,300 civil penalty is assessed.
Citation No. 4129346 and section 104(b) Order No. 4129357
are affirmed and a $1,300 civil penalty is assessed.
The $2,600 in assessed civil penalties shall be paid within
30 days of this decision.
Arthur J. Amchan
Administrative Law Judge
Distribution:
Jay Williamson, Esq., U.S. Department of Labor, Office
of the Solicitor, 1111 Third Ave., Suite 945, Seattle,
WA 98101 (Certified Mail)
James A. Nelson, Esq., 205 Cowlitz, P.O. Box 878, Toledo,
WA 98591 (Certified Mail)
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