**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.

 
   VULCAN CONSTRUCTION  MATERIALS, LLC, 
                        Respondent                                                                      |   |   | CIVIL  PENALTY PROCEEDING

 

Docket  No. SE 2022-0200

A.C. No.  31-00095-561140

 

 

 

 

 

 

Mine: 115  Quarry 

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

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** **

**DECISION APPROVING SETTLEMENT**

** **

 

Before:  Judge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”), who is not an attorney, has filed amotion for settlement. The originally assessed total amountfor the two citations issued was $316.00 and the proposed total settlement is $183.00,as reflected in the following table. 

 

 
| **Citation/Order** | **MSHA’s Proposed Penalty**   | **Settlement Amount** | **Other modifications to  citation/order**                                                                   |
|--------------------|-------------------------------|-----------------------|---------------------------------------------------------------------------------------------------------------|
| 9872489            | $133.00                       | $50.00                | Negligence modified from 

Moderate to low

**62 % penalty reduction**                                        |
| 9872490            | $183.00                       | $133.00               | Injury modified from Reasonably  likely to unlikely & S&S to Non-S&S

**27 % penalty reduction** |
| **TOTAL**          | **$316.00**                   | **$183.00**           |                                                                                                          |

 

 

** **

** **

**Citation9872489**

 

            Forthis now-conceded violation of 30 C.F.R. § 56.15001, which speaks to “First-aidmaterials,” the standard provides that “*adequate* first-aid materials,including stretchers and blankets, shall be provided at places convenient toall working areas. Water or neutralizing agents shall be available wherecorrosive chemicals or other harmful substances are stored.” (emphasis added). 

 

            TheCitation asserted that the first aid kit had an expired bottle of eyewash. Thatthe eyewash was out of date was not contested.     

 

            TheCLR seeks to have the negligence for this citation reduced from moderate to low,producing a penalty of $50.00 (fifty dollars) stating that: 

 

The operator contends the citationwas issued in error and should be vacated. The standard, 56.15001, states inpart: “*Water or otherneutralizing agents shall be available where corrosive chemicals or other harmfulsubstances are stored, handled or used.”* This was a 4oz. bottle of eyewashthat was sealed. It was out of date by only a few weeks. The eyewash was stillsafe to use. Nothing in the standard says anything about expiration dates oneyewash. The standard requires water or neutralizing agents to be available. Ifthis was a violation, the operator contends the negligence should be lowered. Theoperator contends they provided multiple means for a miner to wash their eyesout and didn’t realize the 4 oz. bottle of eyewash was out of date. The 4 oz.bottle was not part of the designated eyewash station and was not evenrequired. It was part of a small first aid kit that had other first aidsupplies in it. They contend that if the 4 oz bottle had not been in the first aidkit they still would have been in compliance with 56.15001 and a citation wouldnot have been issued. TheSecretary believes the operator was in violation of 56.150001 but recognizesthat they have raised a legitimate factual or legal issue and agrees thatCitation 9872489 should be modified from moderate to low negligence. 

 

Motion at3. (emphasis in original).

 

            Thestandard doesn’t directly speak to expired eye wash, but it does require that *adequate**first-aid materials* shall be provided at places convenient to allworking areas. The citation did not specifically assert a failure to have wateror neutralizing agents available where corrosive chemicals or other harmfulsubstances are stored, which is a separate requirement.  The Court simply doesnot know if that separate aspect of the standard was being invoked by the inspectorand, by Commission case law, it is not permitted to inquire about such issues inthe context of settlement motions. Applying the Part 100 Criteria for ProposedAssessment of Civil Penalties, per Attachment A, the minimum penalty of $133.00was derived. The Penalty Conversion Table with Part 100, Table XIV, lists that60 penalty points *or fewer* results in the minimum penalty. 

 

 

 

What theCourt does know is that the $50.00 civil penalty sought in this motion is lessthan a parking meter violation in cities such as Los Angeles. https://www.csusm.edu/parking/adjudication/violationspenaltyamountsandpaymentinformation-.html To the Court, this raises the question of whether such a penalty is sufficientto deter operators from non-compliance. Congress has expressed that it wantedpenalties to be of an order that it would be more expensive to not comply with thesafety and health standards. 

 

            Itis noted that, back in the day, in 1982, MSHA developed something it called the“single penalty assessment,” a term that by itself was quite uninformative. However,its effect was not shrouded – it translated into a $20.00 (twenty dollars)civil penalty for all violations deemed to be timely abated and not significantand substantial. *Drummond*, 14 FMSHRC 661, 663 (May 1992). A bonus, untilthe United States Court of Appeals for the D.C. Circuit became involved, the originalversion of the ‘single penalty’ excluded those assessments from a mine operator’shistory of violations. *Coal Employment Project v. Dole,*900 F.2d 367, (D.C.Cir. 1990)

 

            Itis interesting to note that $20.00 in 1982 translates into $60.92 in 2023. https://www.dollartimes.com/inflation/inflation.php?amount=20&year=1983This means that the Secretary’sproposed penalty today, at $50.00, is less than the ‘single penalty’ in 1982. Tothe Court, this does not seem to be progress.

 

            TheCourt was unable to determine if settlements below the minimum penalty areunacceptable, although inferentially it would seem that MSHA’s own Part 100Criteria suggests they are not. Given the strictures upon Commission judges whenreviewing settlements, it appears that there is no bottom figure. TheCommission, of course, has the authority to direct review *sua sponte*, ifit chooses. However, the Court’s research has yielded that it is infrequentlyinvoked, with that research indicating that it was last employed by theCommission nine years ago. *Mach Mining*, 36 FMSHRC 1525 (June 2014). 

 

**Citation9872490**

 

            Forthis now-conceded violation of 30 C.F.R. §56.14132(a),addressing horns and backup alarms, and its rather clear requirement that “[m]anually-operatedhorns or other audible warning devices *provided on self-propelled mobileequipment as a safety feature* shall be maintained in functional condition,”the operator contends the citation should be vacated or the gravity reduced. Itis conceded that the backup alarm on the truck was not maintained in functionalcondition, as it failed to alarm when it was put in reverse motion. Thus, thereis no question that the alarm on the truck was not functioning.

 

            Here,the CLR seeks to have the violation modified from ‘reasonably likely’ to ‘unlikely.’That change produces a **27%** reduction, bringing the dollar amount down towhat, until the citation discussed above, Part 100 would list as the minimum penaltyof $133.00. 

 

 

 

In thesupport offered by the CLR, the motion advises that 

 

[t]he cited Ford shop truck wasequipped with a back-up camera therefore it was not required to have a back-upalarm. Standard 56.14132(b)(1)(i) states, in part *“when the operator has anobstructed view to the rear, self-propelled mobile equipment shall have anautomatic reverse-activated signal alarm.”*The operator did not have anobstructed view to the rear due to having a back-up camera therefore anautomatic reverse-activated signal alarm was not required. The standard thatwas cited, 56.14132(a) states: “Manually-operated horns or other audible warningdevices provided on self-propelled mobile equipment as a safety feature shallbe maintained in functional condition. Even though the truck was equipped witha back-up camera it was also provided with a back-up alarm. The standardrequires audible warning devices provided on self-propelled mobile equipment tobe maintained. The back-up alarm that was provided on the Ford truck is anaudible warning device and therefore must be maintained as per the standard.The Secretary believes the operator was in violation of 56.14132(a) butrecognizes that they have raised a legitimate factualor legal issue and agrees that Citation 9872490 should be modified fromreasonably likely to unlikely and from S&S to Non-S&S. 

Motion at 3.

 

            Theproblem with the analysis is at least two-fold. First, the MSHA inspector, JeffreyW. Brown, did not cite the Respondent with a violation of 30 C.F.R. § 56.14132(b)(1)(i).**He cited a distinct provision: 30 C.F.R. §56.14132(a), as set forth above**.That latter provision does not offer that the former standard may be reliedupon in lieu of a non-functioning backup alarm. Further, as the Court hasstated in many, many decisions involving settlement motions, all to no avail, thatfederal courts of appeals have rejected the ‘alternative safety measures’ argumentraised by Respondents when analyzing the significant and substantialdesignation. Accordingly, redundant safety measures are not to be considered inevaluating a hazard. 

 

            Forexample, in *Knox Creek Coal*, 811 F.3d 148 (4th Cir. 2016), that Courtobserved: 

“[i]f mineoperators could avoid S & S liability—which is the primary sanction theyfear under the Mine Act—by complying with redundant safety standards, operatorscould pick and choose the standards with which they wished to comply.”...Such apolicy would make such standards “mandatory” in name only. It is thereforeunsurprising that other appellate courts have concluded that ‘[b]ecause redundantsafety measures have nothing to do with the violation, they are irrelevant tothe [S & S] inquiry.’ *Cumberland Coal*, 717 F.3d at 1029; *see alsoBuck Creek*, 52 F.3d at 136. *Knox Creek Coal*, 811 F.3d 148, 162 (4thCir. 2016).

 

            Furtherregarding this issue, in *Consolidation Coal*, 895 F.3d 113, (D.C. Cir. 2018),the D.C. Circuit, referring to its decision in *Cumberland Coal Resources, LPv. Federal Mine Safety & Health Review Commission*, 717 F.3d 1020 (D.C.Cir. 2013), noted that it:

interpretedthe statutory text to focus on the “nature” of “the violation” rather than anysurrounding circumstances. More to the point, the court held that “considerationof redundant safety measures,”—that is, “preventative measures that would haverendered both injuries from an emergency and the occurrence of an emergency inthe first place less likely”—“is inconsistent with the language of [Section]814(d)(1).” *Id*. at 1028–1029. 

 

*Id.* at 118-119.

 

            Inaddition to the analytical flaws described above, the motion also misses thecentral point of the backup alarm – ***it’s to warn others****,whether on foot or in other vehicles, of the potentially hazardous action underway*. A camera does not serve that purpose. At least the CLR seems to recognize this,as he asserts that the cited provision of the standard was violated. In spiteof that recognition, the CLR mistakenly believes that a “legitimate factual orlegal issue” has been raised and from that agrees to redesignating the violationto Non-S&S.

 

            Despitethe several identified concerns, 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. 

            Accordingly, themotion to approve settlement is **GRANTED**and the Citations in this docketare modified as reflected in the table above, with Citation No. 9872489 to be **MODIFIED** frommoderate to low negligence and Citation No. 9872490 to be **MODIFIED** for theexpected injury from reasonably likely to unlikely and from S&S toNon-S&S .

 

            Per the settlement agreement as set forth in theMotion, the Respondent is **ORDERED** to pay the sum of **$183.00**withinthirty days of this order.[1]

 

 

 

 

/s/ William B.Moran

William B. Moran

Administrative LawJudge

 

 

 

 

 

 

 

Distribution:

 

HagelCampbell, CLR, U.S. Department of Labor, Mine Safety and HealthAdministration,

P.O. Box 560, Norton, Virginia24273 campbell.hagel@dol.gov

 

BryanMoore, Safety & Health Manager NC/SC, Vulcan Construction Materials

4401 N.Patterson Ave, Winston-Salem, NC 27105 moorebr@vmcmail.com

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[1]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.