<DOC>
[DOCID: f:york9939c.wais]
DOUGLAS R. RUSHFORD TRUCKING
May 25, 2000
YORK 99-39-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
May 25, 2000
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. YORK 99-39-M
:
DOUGLAS R. RUSHFORD TRUCKING :
BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty,
Commissioners
DECISION
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine
Safety and Health Act of 1977 ("Mine Act" or "Act"), 30 U.S.C.
� 801 et seq. (1994). At issue is Commission Administrative Law
Judge Gary Melick's decision assessing a penalty against Douglas
R. Rushford Trucking ("Rushford") for a violation of 30 C.F.R.
� 56.14104(b)(2), as charged in a citation issued by the
Department of Labor's Mine Safety and Health Administration
("MSHA") in connection with a fatal accident that occurred at
Rushford's Seymour Road Pit. 22 FMSHRC 74, 76-78, 80 (Jan. 2000)
(ALJ). The Commission granted the Secretary's petition for
discretionary review challenging the judge's penalty assessment.
For the reasons that follow, we vacate the judge's penalty
assessment and remand for reassessment.
Our decision in this matter is one of three decisions we are
issuing today regarding the Commission's penalty assessment
authority under section 110(i) of the Mine Act, 30 U.S.C.
� 820(i).[1]
**FOOTNOTES**
[1] The other decisions concerning Commission penalty
assessments we are issuing today are Hubb Corp., Docket No. KENT
97-302, and Cantera Green, Docket No. SE 98-141-M.
I.
Factual and Procedural Background
Rushford Trucking operates the Seymour Road Pit in Clinton
County, New York. S. Pretrial Statement, Stipulations � 1. On
August 28, 1998, when Rushford employee Nile Arnold attempted to
inflate a tire on a fuel truck, the wheel rim exploded and struck
Arnold in the head. 22 FMSHRC at 74-75. At the time, Arnold was
not using a stand-off inflation device, nor was there such a
device available on the mine site. Id. at 75-76. On August 30,
1998, Arnold died as a result of the injuries he sustained. Id.
at 74.
After conducting an investigation, MSHA charged Rushford
with violating section 56.14104(b)(2), which requires that
stand-off inflation devices be used "[t]o prevent injury from
wheel rims during tire inflation." 30 C.F.R. � 56.14104(b)(2).
MSHA also alleged that Rushford's violation was significant and
substantial ("S&S") and the result of Rushford's unwarrantable
failure to comply with section 56.14104(b)(2).[2] The agency
proposed that the Commission assess a penalty of $25,000 against
Rushford. Pet. for Assessment of Civil Penalty, Ex. A (May 24,
1999).
The judge found the violation "proven as charged." 22
FMSHRC at 76. He also found the violation S&S and due to
Rushford's unwarrantable failure to comply with the cited
standard. Id. at 76-78. In his discussion of the violation, the
judge also found Rushford grossly negligent. Id. at 77-78. He
based his unwarrantable failure and negligence findings on
evidence that Rushford "never bothered to obtain a copy of the
health and safety regulations governing the operation of [the]
mine and the credible evidence that not only did the deceased
fail to use an appropriate device for protection during tire
inflation but that no such device was available either at the
mine site . . . or at the mine shop." Id. at 77. The judge also
found "credible [MSHA] Inspector Gadway's testimony that mine
owner Douglas Rushford did not even know what a stand-off
inflation device was." Id. at 78.
The judge made the following findings in support of his
assessment of both a $3,000 penalty for the violation of section
56.14104(b)(2) and a $100 penalty for a violation of 30 C.F.R.
� 50.10 not at issue here: "In assessing civil penalties herein
I have also considered the operator's small size, lack of a
history of recent violations, apparent good faith abatement and
absence of evidence that the penalties would affect its ability
to stay in business." Id. at 80.
II.
Disposition
On appeal, the Secretary argues that the judge erred in
failing to sufficiently explain how he weighed the six statutory
penalty criteria (S. PDR at 10-11),[3] to explain his pronounced
departure from the Secretary's penalty proposal (id.), and to
make specific factual findings on each of the individual penalty
criteria (id. at 11). In its Statement in Opposition, Rushford
argues that, as to his penalty assessment, the judge "clearly
took into account the six (6) statutory penalty criteria and
applied [the] same in reducing the penalty." Opp. at 2.
Rushford also argues that the Secretary's PDR should be dismissed
because it was filed late and that review should not be granted
because the company already paid the penalty assessed by the
judge. Id. at 2-3.
The principles governing the Commission's authority to
assess civil penalties de novo for violations of the Mine Act are
well established. Section 110(i) of the Mine Act delegates to
the Commission "authority to assess all civil penalties provided
in [the] Act." 30 U.S.C. � 820(i). The Act delegates the duty
of proposing penalties to the Secretary. 30 U.S.C. �� 815(a) and
820(a). When an operator notifies the Secretary that it intends
to challenge a penalty, the Secretary petitions the Commission to
assess the penalty. 29 C.F.R. �� 2700.28 and 2700.44. The Act
requires that, "[i]n assessing civil monetary penalties, the
Commission shall consider" the six statutory penalty criteria:
[1] the operator's history of previous violations, [2] the
appropriateness of such penalty to the size of the business
of the operator charged, [3] whether the operator was
negligent, [4] the effect on the operator's ability to con-
tinue in business, [5] the gravity of the violation, and
[6] the demonstrated good faith of the person charged
in attempting to achieve rapid compliance after notification
of a violation.
30 U.S.C. � 820(i).
In keeping with this statutory requirement, we have held
that "findings of fact on the [six] statutory penalty criteria
must be made." Sellersburg Stone Co., 5 FMSHRC 287, 292 (Mar.
1983), aff'd, 736 F.2d 1147 (7th Cir. 1984). Although findings
on each of the criteria may be entered by the Commission on
review based on undisputed record evidence (see Sellersburg, 736
F.2d at 1153), this duty lies with the judge in the first
instance, as is made clear in our Procedural Rules. Rule 30(a)
provides:
In assessing a penalty the Judge shall determine the amount
of penalty in accordance with the six statutory criteria
contained in section 110(i) . . . and incorporate such
determination in a written decision. The decision shall contain
findings of fact and conclusions of law on each of the
statutory criteria and an order requiring that the
penalty be paid.
29 C.F.R. � 2700.30(a). When reviewing a judge's factual
findings on the six penalty criteria, we apply the substantial
evidence test. 30 U.S.C. � 823(d)(2)(A)(ii)(I).
**FOOTNOTES**
[2] The S&S terminology is taken from section 104(d)(1) of
the Act, which distinguishes as more serious any violation that
"could significantly and substantially contribute to the cause
and effect of a . . . mine safety or health hazard." 30 U.S.C.
� 814(d)(1). The unwarrantable failure terminology is also taken
from section 104(d)(1) of the Act, which establishes more severe
sanctions for any violation that is caused by "an unwarrantable
failure of [an] operator to comply with . . . mandatory health or
safety standards." Id.
[3] In our Direction for Review, we stated that we would
consider the Secretary's PDR as her opening brief. We also gave
Rushford leave to file a response to the Secretary's PDR in
addition to the Statement in Opposition it filed February 24,
2000. Rushford filed no response.
Findings of fact on the penalty criteria are necessary to
provide the respondent with notice as to the basis upon which the
penalty is being assessed. Sellersburg, 5 FMSHRC at 292. The
findings also provide the Commission and any reviewing court with
the information they need to accurately determine whether a
penalty is appropriate. Id. at 292-93.
Once findings on the statutory criteria have been made, a
judge's penalty assessment for a particular violation is an
exercise of discretion, which is bounded by proper consideration
of the statutory criteria and the deterrent purposes underlying
the Act's penalty assessment scheme. Id. at 294. Although we
review a judge's penalty assessment under an abuse of discretion
standard (U.S. Steel Corp., 6 FMSHRC 1423, 1432 (June 1984)), in
order for us to determine whether a judge has properly considered
the statutory criteria, the judge must provide a reasoned
explanation for his or her penalty assessment. As we have held
in another context, "[a] judge must analyze and weigh the
relevant testimony of record, make appropriate findings, and
explain the reasons for his decision." Mid-Continent Resources,
Inc., 16 FMSHRC 1218, 1222 (June 1994).[4]
An explanation is particularly essential when a judge's
penalty assessment substantially diverges from the Secretary's
original penalty proposal. Sellersburg, 5 FMSHRC at 293. As we
noted in Sellersburg, without an explanation for such a
divergence, "the credibility of the administrative scheme
providing for the increase or lowering of penalties after contest
may be jeopardized by an appearance of arbitrariness." Id.; see
also Unique Electric, 20 FMSHRC 1119, 1123 n.4 (Oct. 1998);
Dolese Bros. Co., 16 FMSHRC 689, 695 (Apr. 1994).
The majority of cases decided by this Commission and its
judges demonstrate that, generally, our judges' penalty
assessments are made in accordance with these principles.
Nevertheless, we reiterate them at some length here because, as
we also note in the other decisions issued today, in recent years
we have found it necessary to remand several cases due to penalty
assessments that lacked the requisite findings on the section
110(i) penalty criteria.
The instant proceeding is such a case as it presents us with
a penalty assessment that lacks the precision necessary for
appellate review. We find that the judge erred in several
respects. First, he neglected to make findings on all of the
section 110(i) criteria. Specifically, he made no explicit
finding on the gravity of Rushford's violation of section
56.14104(b)(2).[5] He must do so on remand.
Second, although we agree with the Secretary that a judge
"is not required to provide a lengthy or exhaustive analysis of
the evidence" when assessing a penalty under the Mine Act (S. PDR
at 8 n.3), a penalty assessment must provide enough explanation
and analysis to enable meaningful appellate review. Here,
although the judge stated he "considered the operator's small
size, lack of a history of recent violations, apparent good faith
abatement and absence of evidence that the penalties would affect
its ability to stay in business" (22 FMSHRC at 80), he neglected
to explain how his consideration of these factors affected his
penalty assessment - leaving us with no rationale to examine in
determining whether the judge properly considered the statutory
criteria and the deterrent purposes of the Act. On remand, the
judge must provide a more complete explanation of his penalty
assessment. If on remand the judge again decides that a
substantial reduction in the penalty proposed by the Secretary is
warranted, he must explain any such decision, especially in light
of his finding of "gross negligence."
Regarding the judge's finding that Rushford has a "lack of a
history of recent violations" (22 FMSHRC at 80), the record
indicates that between 1993 and 1998, the company did not file
quarterly reports with MSHA as required under 30 C.F.R. � 50.30.
Tr. I 239-41. Although the Secretary asserts that the reason
MSHA did not inspect the mine during the relevant period was
because of Rushford's failure to file quarterly reports (S. PDR
at 12), she offers inadequate record support to substantiate this
contention. If due in some way to the company's failure to meet
a reporting requirement, Rushford's lack of a history of
violations certainly could not properly be considered as a
mitigating factor in a penalty assessment. Given that the record
is unclear on this point, however, we direct the judge on remand
to examine all relevant evidence on this issue, including whether
any inspections occurred during this period and if not, the
reason why they were not conducted. He may also order the record
to be reopened on this issue if necessary. He must then enter a
new finding on Rushford's history of violations.
We reject Rushford's argument that the Secretary's PDR was
filed one day late and should be dismissed. Opp. at 2-3. The
Secretary's PDR was timely filed on February 18, which is thirty
days after January 20, "the day from which the designated period
[began] to run." 29 C.F.R. � 2700.8. Rushford also argues that
"it would clearly be prejudicial and unfair to the Respondent to
now grant a review . . . after [Rushford] has paid in full the
penalties imposed." Opp. at 3. This argument lacks merit. The
appeal provisions of the Mine Act are not superseded by payment
of a disputed penalty. See 30 U.S.C. � 823(d)(2)(A). Finally,
Rushford raises several factual issues in its Statement in
Opposition to the Secretary's PDR. Opp. at 2. The factual
contentions, however, are outside the scope of the grounds on
which we granted review, as set forth in the Secretary's PDR, 30
U.S.C. � 823(d)(2)(A)(iii), and therefore we do not reach them.
**FOOTNOTES**
[4] See also Anaconda Co., 3 FMSHRC 299, 299-300 (Feb. 1981)
("Our function is essentially one of review. Without
findings of fact and some justification for the conclusions
reached by the judge, we cannot perform that function effec-
tively.").
[5] Such a finding is necessary despite the judge's
determination that the violation was S&S.
III.
Conclusion
For the foregoing reasons, we vacate the judge's penalty
assessment and remand for reassessment consistent with this
opinion.
Mary Lu Jordan, Chairman
Marc Lincoln Marks, Commissioner
James C. Riley, Commissioner
Theodore F. Verheggen, Commissioner
Robert H. Beatty, Jr., Commissioner
Distribution
W. Christian Schumann, Esq., Office of the Solicitor, U.S. Depart-
ment of Labor, 4015 Wilson Blvd., Suite 400, Arlington, VA 22203
Thomas M. Murnane, Esq., Stafford, Trombley, Owens & Curtis, P.C.,
One Cumberland Avenue, P.O. Box 2947, Plattsburgh, NY 12901
Administrative Law Judge Gary Melick, Federal Mine Safety & Health
Review Commission, Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000, Falls Church, VA 22041