**FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION**

OFFICE OF THE CHIEFADMINISTRATIVE LAW JUDGE

1331 PENNSYLVANIA AVE.,N.W., SUITE 520N

WASHINGTON, DC20004-1710

TELEPHONE: 202-434-9933

FAX: 202-434-9949

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| SECRETARY  OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION  (MSHA),

                        Petitioner

 

                        v.

 
   JOHN S. LANE & SON INC, 
                        Respondent                                                                      |   |   | CIVIL  PENALTY PROCEEDING

 

Docket  No. YORK 2023-0051

A.C. No.  19-00014-571201

 

 

 

 

 

 

Mine: Westfield  Quarry Plant 78

  |
|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

** **

** **

** **

 

**DECISION APPROVING SETTLEMENT**

 

Before:  Judge William Moran

This case is before the Court upona petition for assessment of a civil penalty under section 105(d) of theFederal Mine Safety and Health Act of 1977.  The Conference and LitigationRepresentative, (“CLR”), has filed a motion to approve settlement.  Theoriginally assessed amount was $747.00 and the proposedsettlement is for $429.00.  The amounts and modifications arereflected in the following table.

 
|  

**Citation/  Order** | **MSHA’s**

**Proposed  Penalty**   |  

**Settlement  Amount** |  

 

**Othermodificationsto citation/order**                  |
|-------------------------------|--------------------------------------|---------------------------------|--------------------------------------------------------------------------|
| 9714863                       | $318.00                              | $143.00                         | Modifytolownegligence

**55% reduction in regularly assessed  penalty** |
| 9714864                       | $143.00                              | $0.00                           | Vacate                                                                   |
| 9714865                       | $143.00                              | $143.00                         | Modifytounlikely,notsignificantand substantial                           |
| 9714866                       | $143.00                              | $143.00                         | Nochanges[1]                                                             |
| **Total**                     | $747.00                              | $429.00                         | **43% overall  reduction in penalty**                                   |

 

The Court is aware that thepenalties in this docket, even as proposed, are of low dollar amounts. However, in the spirit of protecting the safety and health of our Nation’sminers, the dollar amount is not the sole concern when reviewing settlements. Rather, the substance of the alleged violations matters too.

 

**CitationNo. 9714863**

** **

****This Section 104(a) citationinvolves a now-admitted violation of 30 C.F.R 56.11001.  That section, titled“Safe Access,” provides: “Safe means of access shall be provided and maintainedto all working places.”

** **

Thecitation, issued by MSHA Inspector Brandt L. Berryann, provided a detailed andexcellent recounting of the hazard.  That hazard was great, with the inspectorstating that a permanently disabling injury was reasonably likely.  To hisgreat credit, Inspector Berryann, took photos of the hazardous condition. However, the Court is not permitted to see the photos, informative as they wouldlikely be.  The reason for this prohibition is unclear.  The only reason theCourt can discern is the “see no evil” approach[2]or that the *The American CoalCo*. and *Rockwell Mining,LLC*, decisions, cited below, preclude the need for photos.   

 

Theinspector recounted: 

 

Safe access was not provided to thetransfer chute between conveyors CS and CS located at the Primary Plant. Aminer **had accessed the chute for cleaning and maintenance by climbing a stepladder, egressing the ladder laterally by stepping onto the conveyor CS frame measuring 36-inches from the ladder by 39-inches high which was covered in hardenedearthen material, climbing vertically to the top of the CS conveyor skirtboards measuring 64-inches high, onto the CS conveyor belt, climbing through anapproximate 2.5- by 2.5-foot diameter access door at the discharge end of thechute, then climbed vertically up the interior of the chute, exiting through aremoved access panel approximately 4-feet above the conveyor and directly belowthe CS conveyor catwalk**, where the miner then affixed the provided fallprotection to the CS catwalk mid-railing while standing on a stone step withinthe chute, with the upper torso of the miner extending through the exterior ofthe chute, and the miner operating a pneumatic chipping hammer inside the chuteto free hardened material within the chute falling to the CS conveyor belowincreasing the likelihood of an accident/ injury to occur. This conditionexposed the miner to a slip/ trip/ fall hazard. In the event a miner were toslip// trip/ fall hazard. **In the event a miner were to slip/trip/ fall *whileaccessing the chute* a permanently disabling injury would be expected**. **Phototaken**.

 

Petition for Civil Penalty at 6.(emphasis added).

 

 

 

 

Toterminate the citation, the inspector recorded the following:  

 

Theminer was removed from the chute with a boomlift, the mine operator developedand implemented a standard operating procedure for safe access to working atheights, conducted a toolbox talk with all miners, and conducted task trainingon these procedures with the affected miner terminating this citation. **Phototaken**.  *Id*. at 7.

 

**Analysis:**  A model of brevity, the Secretaryoffered the following in support of its view that the negligence should beconsidered ‘low,’ stating: “Respondent will argue that management had no directknowledge of the observed practice, and a man-lift was on site and availablefor elevated tasks, indicating the negligence was somewhat lower thanoriginally evaluated by the inspector.”  Motion at 3.

 

Inthe Court’s view, the Secretary has presented paltry support for this egregiousviolation.  In no way does it provide considerable mitigating information.  Itcannot be passed off as *low*negligence simply on the basis of the claimthat the operator had no ‘*direct* knowledge’ of the hazardous action.  Evenif the knowledge was indirect, it was obvious and there are people known asforemen to oversee work.  Further, the operator only then developed a standardoperating procedure for safe access to working at heights, a serious failure,contradicting any justification to award ‘low’ negligence.  It should not beoverlooked that the inspector had already, generously in the Court’sestimation, called the negligence ‘moderate,’ meaning there was some mitigationawarded. 

 

Although,respecting the Commission case law cited below, the settlement must beapproved, the Court does not believe that the small penalty of $143.00, anamount tantamount to the minimum penalty under Part 100, is consonant withCongress’ concern that penalties are to be of an amount sufficient to makenon-compliance more expensive than compliance. 

 

**CitationNo. 9714864**

** **

Thiscitation, invoking 30 C.F.R. § 56.12068, is plain and direct.  Titled“providing: Locking transformer enclosures, it provides in clear language: “Transformerenclosures shall be **kept locked** against unauthorized entry.”  (emphasisadded)

 

IssuingInspector Berryann, recorded in his citation: 

 

An energized stepdown enclosedtransformer was not kept locked against unauthorized entry providing 480-VAC tothe Powerhouse North Pump Building. The transformer access door handle wasprovided with a means to lock and secure the transformer, but was not utilized.This condition exposed the miner to a shock/ burn hazard. In the event a minerwere to enter the transformer a fatal shock would be expected. Photo taken.

 

**Petitionfor Civil Penalty at 8**

 

Eventhough the Court is not permitted to view the photograph, it still complimentsthe inspector for his diligent effort to record his observation.  

 

TheSecretary announces that this violation is vacated in an exercise of hisprosecutorial discretion.   

 

 

**Analysis:**

 

Althoughthe Court recognizes that the Secretary presently has the authority to vacatecitations without presenting any reason for such a decision, it is hard tounderstand this decision to vacate.  What is not hard to understand is that a non-utilizedhandle to lock the transformer enclosure was found and that an unlockedtransformer enclosure is not a locked transformer.  Confirming that there wasin fact a violation, Inspector Berryman informed in terminating the violation,“a keyed lock was installed on the transformer door handle terminating thecitation.” Again, to his continued credit, Inspector Berryann took a photo ofaction reflecting the installation of the keyed lock.  Given the very lowproposed penalty, at $143.00, and at that barely more than the minimum penalty,the decision to vacate is a mystery.  

 

**CitationNo. 9714865**

** **

            Forthis citation, Inspector Berryann cited a violation of 30 C.F.R.§56.14025.  Itapplies to machinery, equipment, and tools and, like the other standardsmentioned above, it too is understandable to persons of ordinary intelligence,with its clear requirement that “Machinery, equipment, and tools shall not beused beyond the design capacity intended by the manufacturer where such use maycreate a hazard to persons.”

** **

****In this instance, the inspector’sdescription of the condition and practice recounted: 

 

A Spedecut 3-inch cut-off wheel wasused beyond the design capacity intended by the manufacturer where such usecreated a hazard to persons located on a pneumatic die grinder in the blackCraftsman toolbox in the Maintenance Shop. The cut-off wheel was attached tothe die grinder with no installed flange guard as required.  The cut-off  wheelwas used/  returned in  this  condition,  and held by hand when used increasingthe likelihood of an accident/ injury to occur. This condition exposed theminer to contact with or being struck with a fragmenting cut-off wheel hazard.In the event a miner were to come into contact or were struck with a fragmentingwheel a permanently disabling injury would be expected. **Photo taken**

** **

**Petition for civil penalty at 9**

** **

****The inspector believed that anaccident was reasonably likely to occur and that if it did, it would bepermanently disabling.  Accordingly, he listed it as significant andsubstantial.  The negligence was marked as ‘low’ by the inspector. 

 

            Toterminate the citation, the Inspector noted:

 

            Thecut-off wheel was removed from the die grinder and the miner was given a safetytalk terminating this citation. Photo taken.  Further, the mine operator wasput-on-notice that should the die grinder be observed with an attachmentinstalled requiring a guard, with no guard installed, that this would beconsidered aggravated conduct constituting more than ordinary negligence.    

 

**Analysis:**

 

****It appears, clearly, that theinspector had it quite right.  Miners should appreciate his perceptive observationof the hazard the cited condition presented.  Norton Abrasives[3],in an article titled “Cut-Off Wheels and Die Grinders – A Dangerous Combination,”explains that   “the difference between a cut-off tool and a die grinder [is][s]imple – cut-off tools come equipped with a guard and proper mounting flangesdesigned for cut-off wheels, and the speed is compatible with the cut-offwheel. ... While die grinders may look similar to cut-off tools, they are not.They are unguarded tools without flanges and should NEVER be used with cut-offwheels. **It is simple to remember: if the tool does not have a guard, do notuse a cut-off wheel.**https://www.nortonabrasives.com/en-us/resources/expertise/cut-wheels-and-die-grinders-dangerous-combination  (emphasis in original, bold printadded).  

 

****In what the Court views as an unintentionallack of understanding on the part of the CLR, Mr. Jakubauskas, in his motionstates: “The unguarded cut-off tool **was not observed in use**, so anaccurate determination of the hazards present could not be qualified to supportreasonably likely. The miner owned tool was in storage at the time ofinspection, and no visible physical damage to the cutoff wheel was observed,further lessening the likelihood of an injury.” Motion at 3.

 

            Theremarks cited above from the manufacturer demonstrate that the CLR wasincorrect.  That ill-founded assertion was compounded by two more inaccurateremarks.  The establishment of a violation does not require that the conditionbe observed in use.  Such a prerequisite would be ludicrous. The secondinaccuracy is the CLR citing *Am. Aggregates of Michigan, Inc*., 42 FMSHRC570, 576-79 (Aug. 2020) (citing *Mechanicsville Concrete, Inc*., 18 FMSHRC877, 879-80 (June 1996) as authority permitting the Secretary with *discretion*to modify an *extant* significant and substantial designation.  Thosecases do not stand for that claim.  The Court recognizes that CLRs, not beingattorneys, just echo what they are told to say on that score, but justfollowing orders, repeating what someone else (the Solicitor) directs one toassert doesn’t make it true.   

 

            Accordingly,the CLR improperly asserted his discretion to turn the violation into anon-significant and substantial violation, an assertion contrary to the hazardpresented and contrary to current Commission decisional law.  

 

**Conclusion**

** **

****In spite of all the identifiedinadequacies, the motion must be approved.  This is because the Court isobligated, and does, honor Commission case law regarding a judge’s review ofsettlement motions.  On that account, the Court has considered the Secretary’sMotion and approves it *solely* on the basis of the Commission’s decisionsin *The American Coal Co*., 40 FMSHRC 983 (Aug. 2018) and *RockwellMining, LLC*, 40 FMSHRC 994 (Aug. 2018) for the standard to be applied byCommission administrative law judges when reviewing such settlement motionsunder the Commission’s interpretation of section 110(k) of the Mine Act.  Perthe Commission’s decisions on the scope of a judge’s review authority ofsettlements, the “information” presented in this settlement motion is sufficientfor approval.  

 

 

**WHEREFORE**, the motion for approval ofsettlement is **GRANTED**.

 

It is **ORDERED** that **CitationNo. 9714863** be **MODIFIED** to low negligence and **Citation No.9714865** be **MODIFIED**to unlikely, and by that redesignation asunlikely, modified to not significant and substantial.  The reduced penaltiesare reflected in the table above.

 

            The Respondentis **ORDERED** to pay the sum of **$429.00******within thirty days ofthe final order.[4]Upon receiptof payment, this case is **DISMISSED**.  

 

 

 

 

/s/William B. Moran

                                                                                    WilliamB. Moran

                                                                                    AdministrativeLaw Judge

 

 

 

Distribution:

 

CLR BruceH. Jakubauskas, U.S. Department of Labor, Mine Safety and Health Administration,Thornhill Industrial Park, 178 Thorn Hill Road, Suite 100, Warrendale, PA 15086, jakubauskas.bruce@dol.gov

 

 

Michael Peelish, Attorney / LawOffice of Adele L. Abrams, P.C., 4740 Corridor Place, Suite D, Beltsville, MD20705  mpeelish@aabramslaw.com

----

[1]CitationNo. 9714866, a paperwork recording violation, remained unchanged, and theRespondent agreed to accept it as issued and pay the assessed penalty. Motion at 4.

[2]Dating back to theMuromachi period of Japan, 1338-1573, this expression isnow often used to mean to ignore bad behavior by pretending not to hear or seeit.https://www.britannica.com/event/Muromachi-period, https://www.macmillandictionary.com/us/dictionary/american/hear-no-evil-see-no-evil-speak-evil

[3]Norton Abrasiveshas been in the abrasives business for more than 130 years. https://www.nortonabrasives.com/en-us

[4]Penalties may be paidelectronically at Pay.Gov, a service of the U.S. Department of the Treasury, athttps://www.pay.gov/public/form/start/67564508. Alternatively, send payment (checkor money order) to: U.S. Department of Treasury, Mine Safety and HealthAdministration, P.O. Box 790390, St. Louis, MO 63179-0390. 

It isvital to include Docket and A.C. Numbers when remitting payments.