<DOC>
[DOCID: f:mech.wais]
MECHANICSVILLE CONCRETE, INC.
June 20, 1996
VA 93-145-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
June 20, 1996
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. VA 93-145-M
:
MECHANICSVILLE CONCRETE, INC. :
t/a MATERIALS DELIVERY :
BEFORE: Jordan, Chairman; Holen, Marks and Riley, Commissioners[1]
DECISION
BY: Jordan, Chairman; Holen and Riley, Commissioners
This civil penalty proceeding, arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. � 801 et seq. (1994) ("Mine
Act" or "Act"), raises the issues of whether a judge on his own
initiative can designate a violation of a mandatory safety standard
to be significant and substantial ("S&S")[2] and whether the judge's
penalty assessment for the violation was proper. Administrative
Law Judge Arthur Amchan concluded that a violation by Mechanicsville
Concrete, Inc. t/a Materials Delivery ("Mechanicsville") of 30
C.F.R. � 56.14100(b) (1995)[3] was S&S, although the Secretary's
citation had not contained that allegation, and assessed a penalty
of $200. 16 FMSHRC 1444, 1449-52 (July 1994) (ALJ). The Commission
directed review sua sponte of the judge' s S & S determination (see
section 113(d)(2)(B) of the Act, 30 U.S.C. � 823(d)(2)(B))[4] and
granted Mechanicsville's petition for discretionary review only to
the extent it requested review of the penalty. For the reasons that
follow, we reverse the judge' s S &S determination and affirm his
penalty assessment.
I.
Factual and Procedural Background
Mechanicsville owns and operates the Branchville pit, a sand
and gravel mining operation in Southampton County, Virginia. 16
FMSHRC at 1445. On May 10, 1993, Charles Rines, an inspector from
the Department of Labor's Mine Safety and Health Administration
("MSHA"), conducted an inspection of equipment at the mine,
including a front-end loader. Id. at 1449-50. The vehicle, which
could lift and transport more than three tons of material per
bucketful, was used to mine sand and gravel, move raw material to
the preparation plant for processing, and load processed materials
into customers' trucks. Tr. I 84-85, 93, 97-98.[5]
Inspector Rines observed that the windshield wiper and blade
were missing from the vehicle. 16 FMSHRC at 1450. Accordingly, he
issued a citation, pursuant to section 104(a) of the Mine Act, 30
U.S.C. � 814(a), alleging a violation of section 56.14100(b). 16
FMSHRC at 1450; Gov't Ex. 7. Inspector Rines did not allege the
violation was S&S. Id.
The judge found that Mechanicsville violated the regulation by
failing to have a windshield wiper arm and blade on the front-end
loader. 16 FMSHRC 1451. In addition, the judge determined that the
violation was S&S, concluding that he had the authority under
section 105(d) of the Mine Act, 30 U.S.C. � 815(d), to "find an
`S&S' violation sua sponte . . . ." 16 FMSHRC at 1452. The
Secretary had proposed a civil penalty of $50; the judge assessed a
civil penalty of $200 for the violation. Id.
II.
Disposition
The Secretary asserts that the judge did not have authority to
find a violation S&S where the citation issued by the Secretary did
not allege an S&S violation. S. Br. at 3-8. He argues that his
enforcement responsibility and authority under the Mine Act are
exclusive and that the judge's action was, in effect, an attempt to
review the Secretary's enforcement decision. Id. at 5-7. The
Secretary argues that the judge assessed an appropriate penalty.
Id. at 9-10.
Mechanicsville does not take a position on the judge's
authority to find a violation S&S where the Secretary has declined
to do so. Mechanicsville contends, however, that the judge
improperly enhanced the penalty. M. Br. at 4. It submits that the
judge erred in denying its motion to strike certain evidence of
prior violations. Id.
A. Whether the Judge Had Authority to Find the Violation S&S
We agree with the Secretary that the judge erred in determining
on his own initiative that the violation was S&S. The Mine Act
confers enforcement authority upon the Secretary. Thunder
Basin Coal Co. v. Reich, 127 L. Ed. 2d 29, 36, 40 (1994).
Under section 103(a) of the Act, 30 U.S.C. � 813(a), the
Secretary's representatives are required to make frequent
inspections of mines and to investigate whether operators are
in compliance with the requirements of the Act. Section l04(a)
delegates to the Secretary authority to issue citations for
violations of the Act or any mandatory health or safety
standard, rule, order, or regulation promulgated pursuant to
the Act. Sections 104(d)(1) and 104(e), 30 U.S.C. � 814(d)(1)
and (e), expressly provide that the Secretary possesses
authority to designate a violation S&S. See Consolidation Coal
Co., 6 FMSHRC 189, 191-92 (February 1984) (inspector' s S &S
findings under section 104(d)(1)). The Commission adjudicates
disputes under the Mine Act (see sections 105 and 113, 30
U.S.C. �� 815 and 823); the Commission has no enforcement
responsibility under the Act. See Thunder Basin, 127 L. Ed.
2d. at 36. The Commission does not have authority to inspect
mines, investigate violations, or issue citations. The
Commission has concluded that its administrative law judges are
not authorized representatives of the Secretary and do not have
authority to charge an operator with violations of section 104
of the Mine Act. Mettiki Coal Corp., 13 FMSHRC 760, 764 (May
1991).
The Supreme Court has held that an administrative agency has
virtually unreviewable discretion in making decisions not to
take particular enforcement action relating to its statutory
or regulatory authority. Heckler v. Chaney, 470 U.S. 821, 831-
32 (1985); see Brock v. Cathedral Bluffs Shale Oil Co., 796
F.2d 533, 538 (D.C. Cir. 1986). The Commission has recognized
that the Secretary's discretion to vacate citations is
unreviewable. RBK Construction, Inc., 15 FMSHRC 2099,
2101 (October 1993). We perceive no material difference
between the Secretary's discretion on the one hand to
vacate a citation and his discretion on the other hand
not to issue a citation in the first instance or not to
designate a citation as S&S. In making his sua sponte
determination, the judge essentially made a prosecutorial
decision to designate the citation as S&S in the first
instance--an exercise of enforcement authority reserved for
the Secretary--along with an adjudicatory determination to
affirm that designation. In so doing, the judge, contrary to
the Mine Act's statutory scheme, usurped the Secretary's role
of enforcing the Mine Act.
The judge claimed authority to designate Mechanicsville's
violation S&S based on section 105(d) of the Mine Act,
which gives the Commission authority to affirm, modify, or
vacate a citation.[6] The Commission has held that section
105(d) permits a judge to modify a citation or order so
long as the essential allegations necessary to sustain the
modified enforcement action are contained in the original
citation or order. Consolidation Coal Co., 4 FMSHRC 1791,
1793-94 (October 1982). The Commission emphasized that the
judge did not add new findings to create a 104(d)(1)
citation. Id. at 1796. By contrast, the Commission has
overturned a judge's modification of an imminent danger
withdrawal order issued under section 107(a) of the Mine
Act, 30 U.S.C. � 817(a), to a failure to abate withdrawal
order issued under section 104(b) of the Act, 30 U.S.C.
814(b). Mettiki, 13 FMSHRC at 764-65. The Commission
reasoned that the modification was not appropriate because
the judge added new findings to create a section 104(b)
order. Id. at 765. The Commission emphasized that
findings necessary to establish an imminent danger order
were different from findings required to establish a
section 104(b) order. Id. Here, the judge similarly
erred by adding a new finding and conclusion, i.e., that
the violation posed a hazard to employees that was
reasonably likely to result in a reasonably serious
injury[7] and was therefore S&S. 16 FMSHRC at 1450-52.
B. Whether the Judge Erred in His Penalty Assessment
In contested civil penalty cases, the Mine Act requires
that the Commission make an independent penalty assessment
based on the statutory criteria of section 110(i) of the
Act, 30 U.S.C. � 820(i). Sellersburg Stone Co., 5 FMSHRC
287, 291 (March 1983), aff'd, 736 F.2d 1147, 1152 (7th Cir.
1984). The Commission has explained that "[t]he
determination of the amount of the penalty that should be
assessed for a particular violation is an exercise of
discretion by the trier of fact. This discretion is
bounded by proper consideration of the statutory criteria
and the deterrent purpose underlying the Act's penalty
assessment scheme." 5 FMSHRC at 294 (citation omitted).
In reviewing a judge's penalty assessment, the Commission
must determine whether the penalty is supported by
substantial evidence and is consistent with the statutory
penalty criteria.[8] While "a judge's assessment of a
penalty is an exercise of discretion, assessments lacking
record support, infected by plain error, or otherwise
constituting an abuse of discretion are not immune from
reversal . . . ." U.S. Steel Corp., 6 FMSHRC 1423, 1432
(June 1984).
The judge found that Mechanicsville's history of violations
warranted assessment of a substantial penalty. 16 FMSHRC
at 1452. Mechanicsville claims the judge erred in basing
his penalty assessment in part on violations set forth in
Gov't Exs. 9 through 12. M. Br. at 4. Mechanicsville
asserts that these exhibits should have been stricken,
pursuant to its motion made at hearing, because they were
not produced by the Secretary pursuant to Mechanicsville's
discovery requests. Id.
We conclude that the judge did not err in refusing to
strike the exhibits. The citations therein were relevant
to the issue of the operator's history of violations.
Section 110(i) sets forth the operator's history of
previous violations as a factor to be considered in
assessing a civil penalty. As the judge correctly noted,
all but one of the citations were listed in the Secretary's
prehearing report, which indicated they might be
introduced. Tr. II 13-14, 16-17; S. Resp. to
Notice of Hr'g at 5. There was no showing of prejudice.
See Materials Delivery, 15 FMSHRC 2467, 2469 (December
1993) (ALJ) (three citations in the exhibits had
previously been litigated). 15 FMSHRC at 2469; Tr.
II 17. Moreover, Mechanicsville, which was represented
by counsel, asked the judge to strike the exhibits only
after they had been admitted into evidence without
objection. Gov't Ex. 9 (Tr. I 118); Gov't Ex. 10 (Tr. I
129); Gov't Ex. 11 (Tr. I 132); Gov't Ex. 12 (Tr. I 138-
39). Failure to object to an offer of evidence when the
offer is made waives on appeal any argument against its
admission. 1 John W. Strong et al., McCormick on Evidence
� 52, at 200 (4th ed. 1992); see In Re: Contests of
Respirable Dust Sample Alteration Citations, 17 FMSHRC
1819, 1864 (November 1995), appeal docketed, No. 95-1619
(D.C. Cir. Dec. 28, 1995).
Mechanicsville does not dispute the judge's other penalty
criteria findings, including high negligence and high
gravity. 16 FMSHRC at 1452. Accordingly, we conclude that
the assessed penalty was within the judge's discretion and
is supported by substantial evidence.
III.
Conclusion
For the foregoing reasons, we conclude that the judge
lacked authority to find, sua sponte, that Mechanicsville's
violation was S&S and we reverse the judge's conclusion
that the violation was S&S. We affirm the judge's
assessment of a $200 civil penalty.
Mary Lu Jordan, Chairman
Arlene Holen, Commissioner
James C. Riley, Commissioner
**FOOTNOTES**
[1]: Commissioner Doyle participated in the consideration of
this matter but resigned from the Commission before its final
disposition.
[2]: The S&S terminology is taken from section 104(d)(1) of
the Mine Act, 30 U.S.C. � 814(d)(1), which distinguishes as more
serious in nature any violation that "could significantly and
substantially contribute to the cause and effect of a . . . mine
safety or health hazard . . . ."
[3]: Section 56.14100(b) provides:
Defects on any equipment, machinery, and
tools that affect safety shall be corrected in a
timely manner to prevent the creation of a
hazard to persons.
[4]: Section 113(d)(2)(B) provides in relevant part:
[A]fter the issuance of a decision of an
administrative law judge, the Commission may in
its discretion . . . order the case before it
for review . . . . The Commission shall state
in such order the specific issue of law,
Commission policy, or novel question of policy
involved.
[5]: The hearing was conducted on March 22 and 23,
1994. "Tr. I" refers to the March 22 hearing transcript;
"Tr. II" refers to the March 23 hearing transcript.
[6]: Section 105(d) states, as pertinent:
[T]he Commission shall afford an opportunity
for a hearing (in accordance with section
554 of title 5 [U.S.C.], but without regard
to subsection (a)(3) of such section), and
thereafter shall issue an order, based on
findings of fact, affirming, modifying, or
vacating the Secretary's citation, order, or
proposed penalty, or directing other
appropriate relief.
[7]: Our dissenting colleague relies on the fact that,
in responding to statement 10.B. on the citation form, "Injury
or Illness could reasonably be expected to be," the inspector
checked the box indicating "Fatal." Slip op. at 7-8. Commissioner
Marks fails to acknowledge that, in responding to statement 10.A.,
"Injury or Illness . . . (is)," the inspector checked the box
indicating "Unlikely." In order to establish the third element
of an S&S determination, Mathies Coal Co., 6 FMSHRC 1, 3-4
(January 1984), requires "a reasonable likelihood that the hazard
contributed to will result in an injury."
[8]: The Commission is bound by the substantial evidence
test when reviewing an administrative law judge's factual
determinations. 30 U.S.C. � 823(d)(2)(A)(ii)(I). "Substantial
evidence" means "such relevant evidence as a reasonable mind
might accept as adequate to support [the judge's] conclusion."
Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (November
1989), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229 (1938). While we do not lightly overturn a judge's factual
findings and credibility resolutions, neither are we bound to
affirm such determinations if only slight or dubious evidence
is present to support them. See, e.g., Krispy Kreme Doughnut
Corp. v. NLRB, 732 F.2d 1288, 1293 (6th Cir. 1984); Midwest
Stock Exchange, Inc. v. NLRB, 635 F.2d 1255, 1263 (7th Cir.
1980). We are guided by the settled principle that, in reviewing
the whole record, an appellate tribunal must also consider
anything in the record that "fairly detracts" from the weight
of the evidence that supports a challenged finding. Universal
Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).
Commissioner Marks, concurring in part and dissenting in part:
The majority has determined that the judge does not have
the authority to conclude that a violation is significant and
substantial when the Secretary has failed to formally make such a
charge. I disagree and dissent on this issue.
In reaching their conclusion, the majority stresses that
the Act gives the Commission no enforcement responsibility and
that the Commission has no authority to investigate or inspect
mines, issue citations, or charge operators with section 104
violations. Slip op. at 3. I don't disagree generally with that
statement. However, I find those observations irrelevant to the
analysis.
My colleagues veer off the rails by concluding that the
judge's action in this case was essentially "a prosecutorial
decision to designate the citation as S&S in the first instance--an
exercise of enforcement authority reserved for the Secretary . . ."
and that in doing so he "usurped the Secretary's role of enforcing
the Mine Act." Slip op. at 3-4. They go further, concluding that
the judge "erred by adding a new finding and conclusion, i.e., that
the violation posed a hazard to employees that was reasonably
likely to result in a reasonably serious injury and was therefore
S&S." Slip op. at 4. They are wrong.
As long recognized by the Commission, and as apparently
understood today by the majority, the Commission's holding
in Consolidation Coal Co., 4 FMSHRC 1791 (October 1982),
reflected a recognition that section 105(d) of the Act
authorizes the judge to modify citations "so long as the
essential allegations necessary to sustain the modified
enforcement action are contained in the original citation
or order." Slip op. at 4. For reasons explained below, I
conclude that is precisely what occurred in this case,
i.e., the judge's ruling is based on allegations contained
in the original citation. Therefore, I find that the judge
acted within his authority and in accordance with his duty
as an administrative law judge when he concluded that the
subject violation was S&S.
The violation in issue was one of five separate violations
charged by the Secretary on May 10, 1993, and ultimately
sustained by the judge. All five violations related to the
highly dangerous condition of the cited front-end loader.
In addition to the citation on review, which was issued
because the sole windshield wiper arm and blade was
missing, the loader was also cited for: a broken windshield
and right side glass; an inoperable parking brake; an
inoperable horn; and an inoperable back-up alarm. In all
citations, except the windshield arm/blade citation, the
inspector checked the S&S box on the citation form. The
inspector testified that he did not check the S&S box on
the windshield arm/blade citation because it was not
raining at the time of his inspection. See Tr. I 105-06,
166.
The majority's conclusion on this issue is totally reliant
upon the fact that the inspector checked "no" next to the
S&S box on Citation No. 4085282. Gov't Ex. 7 (statement
10. C.). However, the majority fails to recognize that,
on the same citation, in response to statement
10.B., "Injury or Illness could reasonably be expected to
be," a check appears in the box indicating "FATAL." Gov't
Ex. 7 (statement 10.B.) (emphasis supplied). Thus, in this
case, the Secretary came before the judge charging that the
violation could reasonably be expected to be a fatality.
At the hearing before the judge, this charge was supported
by unrefuted testimony from the inspector that rain and
early morning dew on the windshield causes a "distorted
view of everything in front of you." Tr. I 104-05.[1]
Moreover, the inspector testified that the loader is
operated in the early morning and when it is raining. Id.
at 105. Significantly, on cross-examination the inspector
refused to agree that there was no likelihood of an
accident resulting from the violation. Id. at 204-06.[2]
Thus, the record before the judge included: the Secretary's
charge that the violation could result in an injury
reasonably expected to be fatal; the testimony of the
inspector, refusing to agree on cross-examination, that
there was no likelihood of an accident; and most
importantly, the inspector's testimony that he would have
checked the box designating the violation S&S if it had
been raining at the time of citation. Given the foregoing,
I conclude that the judge had both a duty and obligation to
rectify what was a misapprehension of law by the
inspector.[3]
The administrative law judge has the duty to determine
whether the evidence of record supports the Secretary's
charge. But for his belief that the absence of rain at the
time of citation restricted him from formally charging S&S,
the Secretary's inspector and principal witness clearly
indicated that he believed the violation was S&S. The
judge's authority is not limited to either agreeing with
the levels of gravity charged by the Secretary or
determining that the Secretary's charges of gravity should
be diminished. The judge also has both the duty and
authority to determine, in view of the record, that the
gravity of the charges made by the Secretary should be
increased. The Secretary clearly supports this view.
To the extent that the judge determines that the
evidence presented at the hearing indicates that the
gravity of a particular violation is higher than that
initially determined by the Secretary, the judge can
properly consider this evidence in evaluating the
gravity of the violation for purposes of assessing an
appropriate civil penalty.
S. Br. at 9.
That is precisely what the judge did in this case. The
record clearly indicates that the Secretary believed the
gravity of the violation to be S&S but for his inspector's
misapprehension of the breadth of the law.
The majority also intimates that no basis for the S&S
conclusion exists in this case. See Slip op. at 4
(different findings required). I disagree. In this case
the evidence in the record is adequate to determine that
all Mathies elements were satisfied. See Mathies Coal Co.,
6 FMSHRC 1, 3-4 (January 1984). Moreover, as the Secretary
acknowledges, "the penalty criterion of gravity encompasses
the same factors or evidence evaluated in determining whether
a violation is significant and substantial." S. Br. at 10
n.7, citing Quinland Coals, Inc., 9 FMSHRC 1614, 1622 n.11
(September 1987).
For the foregoing reasons, I dissent and would affirm the
judge's conclusion of S&S.
_____________________________
Marc Lincoln Marks,
Commissioner
**FOOTNOTES**
[1]: The inspector's testimony on cross-examination
further establishes the dangerous condition of the loader at the
time of citation:
The windshield was broken in several places. That
affected the vision of the operator that was operating
that piece of equipment. It was spider-webbed in
front of it. You got an illusion whenever you would
look through this broken glass.
Tr. I 170.
[2]: In a purported defense of the dangerous condition of
the loader, the operator's counsel callously challenged whether
a miner would actually be killed by the loader because the
ground was sandy, not hard asphalt, and because the loader was
two feet above the ground. Tr. I 165-66, 207-09, 223.
[3]: The Commission case law is well settled. In
evaluating whether a violation is S&S it is necessary to
consider the violation in the context of "continued normal
mining operations." U.S. Steel Mining Co., 6 FMSHRC 1573, 1574
(July 1984); see also Monterey Coal Co., 7 FMSHRC 996, 1001-02
(July 1985). "The operative time frame for determining if a
reasonable likelihood of injury exists includes both the time
that a violative condition existed prior to the citation and the
time that it would have existed if normal mining operations had
continued." Rushton Mining Co., 11 FMSHRC 1432, 1435 (August
1989), citing Halfway, Inc., 8 FMSHRC 8, 12 (January 1986), and
U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (August 1985). Here,
the testimony established that the loader was used in rainy
conditions. Tr. I 105.