<DOC>
[DOCID: f:yk9939y.wais]

 
DOUGLAS R. RUSHFORD TRUCKING
YORK 99-39-M
December 27, 2001

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, Suite 1000
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041

                        December 27, 2001

SECRETARY OF LABOR,              : CIVIL PENALTY PROCEEDING
   MINE SAFETY AND HEALTH        :
   ADMINISTRATION (MSHA),        : Docket No. YORK 99-39-M
               Petitioner        : A. C. No. 30-02851-05504
          v.                     :
                                 : Seymour Road Pit
DOUGLAS R. RUSHFORD TRUCKING,    :
               Respondent        :

                             DECISION

Appearances: Suzanne Demitrio, Esq., Office of the Solicitor,   
             U.S. Department of Labor, New York, New York, on 
             behalf of Petitioner;
             Thomas M. Murnane, Esq., Stafford, Trombley, Owens
             & Curtin, PC, Plattsburgh, New York, on behalf of
             Respondent.

Before: Judge Melick

     This civil penalty proceeding under the  Federal Mine Safety
and  Health  Act of 1977, 30 U.S.C.  801 (1994),  et  seq.,  the
"Act,"  is  before   me   upon  remand  by  the  Commission   for
reassessment  of  a civil penalty  against  Douglas  R.  Rushford
Trucking (Rushford)  for  its  violation  of  the  standard at 30
C.F.R.  56.14104(b)(2).[1]

       Rushford operated the Seymour Road Pit in Clinton  County,
New York.  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.   At the time, Arnold was
not  using  a stand-off inflation device nor  was  there  such  a
device available  on  the  mine site.  On August 30, 1998, Arnold
died as a result of the injuries  he sustained.  After conducting
an  investigation,  the Department of  Labor's  Mine  Safety  and
Health Administration  (MSHA)  charged Rushford with violating 30
C.F.R.  56.14104(b)(2).  That standard  requires  that stand-off
inflation  devices be used "to prevent injuries from  wheel  rims
during tire  inflation."   As  indicated,  the  matter  has  been
remanded for reassessment of a civil penalty.

     As  the Commission has noted, the initial findings of "gross
negligence"  and  "unwarrantable  failure"  by the trial judge in
Rushford ALJ-I were not remanded and became the  law of the case.
In   Rushford  Review-I  the  matter  was  remanded  for  further
explanation of the application of the civil penalty criteria and,
in particular,  the findings of "gross negligence."  Cognizant of
the law in this regard  and  of  the specific terms and limits of
the remand order, a discussion was  provided  in  Rushford ALJ-II
for  the purpose of explaining where the facts of this  case  fit
into the  framework  of such "gross negligence" findings.  "Gross
negligence" is not, of  course, a monolithic concept but includes
many gradations of severity.  The discussion provided in Rushford
ALJ-II was presented to comply with the Commission's remand order
and to explain that the "gross  negligence" herein was not at the
highest end of the "gross negligence" continuum.  The findings of
"gross  negligence"  were  not,  in  fact,   reduced  to  "simple
negligence" and no order to that effect was issued.  Moreover, no
modification of the "unwarrantable failure" findings was made and
no  order  to  that  effect was issued.  In addition,  the  civil
penalty on remand was  not  decreased,  but  rather was increased
from $3,000.00 to $4,000.00.  That increased penalty incorporated
the findings of "gross negligence."[2]

     In considering whether the civil penalty  assessed herein is
supported  by "substantial evidence" reference to  the  objective
formula set  forth in the Secretary of Labor's own regulations at
30 C.F.R. Part  100  may  provide a useful comparison.  While the
Commission and its judges are,  of  course,  not  bound  by those
regulations, they nevertheless provide an objective standard  for
measuring  an  appropriate  civil  penalty by assigning numerical
weight to the relevant "Section 110(i)  "  criteria  and  then by
applying a standardized formula.

     Reference  to  this  objective  standard, rather than to the
Secretary's   arbitrary,   subjective  and   secretive   "special
assessment,"  removes the process  from  possible  taint  due  to
passion, prejudice  or  other  unlawful motivation.  In addition,
the  factual basis for deriving a  penalty  under  the  Part  100
formula is transparent and exposed for all to see.  The secretive
"special   assessment"   in  this  case  was  made  without  full
disclosure of any considered  analysis  of  the statutory penalty
criteria.   There  is  no  way to know, therefore,   whether  the
penalty proposed by the Secretary  herein was based upon improper
considerations and/or erroneous assumptions  of fact.  Indeed, as
we  now  know,  the  proposed  penalty  was  in fact  based  upon
erroneous  assumptions.  In addition there is evidence  that  the
Secretary may  have  also  relied upon improper considerations in
that she has argued that certain factors outside the scope of the
"Section 110(i)" criteria should  be  considered  in  assessing a
civil penalty herein.

     It  should  also  be  noted  that  the  Secretary's pleading
entitled  "Narrative  for Special Assessment" which  purports  to
provide a "considered analysis,"  is  nothing  more  than  a form
letter  used in special assessment cases in which bald assertions
are anonymously made that:

          MSHA  has carefully evaluated the condition cited,
     the inspector's  relevant  information  and evaluation,
     and  the  information  obtained  from  the  Report   of
     Investigation.    The  proposed  penalty  reflects  the
     results of an objective  and  fair appraisal of all the
     facts presented.

     As  noted,  the  Secretary  was  unable   to   furnish   any
information  underlying  her  purported  penalty analysis in this
case.  There is indeed no explanation for  the extreme divergence
between  the  Secretary's  objective  standard civil  penalty  of
$3,234.00  calculated under her Section  100.3  formula  and  the
subjective inadequately  substantiated proposal of $25,000.00, in
this  case.   Without  an  adequate   explanation   for   such  a
divergence, the credibility of her "special assessment" is indeed
further jeopardized by the appearance of arbitrariness and should
not  properly  be  considered as a benchmark or guideline for  an
appropriate de novo  penalty assessment by the Commission and its
judges.

     Applying the factual  findings  in this case, which have now
been  affirmed by the Commission in Rushford  Review-II,  to  the
objective formula set forth in 30 C.F.R.  100.3, would result in
a civil  penalty  of  $3,234.00, for the violation herein.  Under
that formula, Rushford  would  receive  0  penalty points for its
small size, 20 penalty points for its history  of  violations, 25
penalty points for "gross negligence," 10 penalty points  for the
fact  that  the  event  had  "occurred,"  10  penalty  points for
severity in causing the fatality and 1 penalty point for  the one
person  affected  by  the event.  In addition, under 30 C.F.R.  
100.3(f),  a  30%  reduction   would  be  given  for  good  faith
abatement.

     Under  the  circumstances, considering  the  criteria  under
Section 110(i) of  the  Act,  and considering that the underlying
premise for the remand in Rushford  Review-II  was  incorrect,  I
find  that a civil penalty of $4,000.00 is indeed appropriate for
the violation at issue herein.

                              ORDER

     Douglas R. Rushford Trucking is hereby directed to pay civil
penalties  of  $4,000.00, for the violation charged herein within
40 days of the date of this decision.

                              Gary Melick
                              Administrative Law Judge

Distribution: (Certified Mail)

Suzanne Demitrio,  Esq.,  Office  of the Solicitor, U.S. Dept. of
Labor, 201 Varick St., Room 707, New York, NY 10014

Thomas M. Murnane, Esq., Stafford,  Trombley, Owens & Curtin, PC,
One Cumberland Avenue, P.O. Box 2947, Plattsburgh, NY 12901

/mca

**FOOTNOTES**

     [1]: The initial decision of the  trial  judge, 22 FMSHRC 74
(January  2000),  will  be noted as "Rushford ALJ-I,"  the  trial
judge's decision following  remand,  22  FMSHRC  1127  (September
2000)  as "Rushford ALJ-II," the first decision by the Commission
on review,  22  FMSHRC 598 (May 2000) as "Rushford Review I " and
the second decision  on  review,  23  FMSHRC 790 (August 2001) as
"Rushford Review II."

     [2]: The use in Rushford ALJ-II of  the  maximum  25 penalty
points  for  negligence  (the  equivalent of "reckless disregard"
under 30 C.F.R.  100.3(d)), to  compute  and  compare  a penalty
under  the  Secretary's Part 100 formula is likewise inconsistent
with any reduction of such "gross negligence" findings to "simple
negligence."  See 22 FMSHRC at p.1132.