By Ellen Smith
If your company is looking to settle a case for MSHA citations that were initially contested, have all of the justifications in place for any significant penalty reduction, or be ready for protracted proceedings to get approval from a Commission judge.
ALJ William Moran recently rejected two settlements where the attorney for the Secretary refused to voluntarily produce the information that could have justified steep reductions in the penalties – anywhere from a 25 percent to a 70 percent reduction.
In the first case, Judge Moran ordered the Secretary to produce photographs and MSHA inspector notes where the Secretary sought a 55 percent penalty reduction for Jacobs Field Service, a contractor at Freeport McMoran’s Morenci Mine in Greenlee County, Ariz. The company was cited for an S&S housekeeping violation under §56.20003(a) after an inspector found six boards with nails protruding 2 to 3-in. out of them located at the “laydown yard.”
In justifying a 55 percent reduction in the penalty from $1,795 to $800, the Secretary’s attorney said the area was clean, the nails were small and would not cause a serious injury if stepped on, and the nails were not in a walkway. The Secretary also sought to drop the S&S finding, and stated there “may be legitimate factual and legal disputes regarding gravity and negligence.”
In ordering additional information, Judge Moran said it was not enough to assert that the area was not a walkway, or the area was clean. The cited standard is not limited to walkways, but includes working places and passageways. He was also troubled by the contention that the nails were small, noting the nails could easily penetrate a thick work boot.
The Secretary refused to produce additional information. According to the Secretary’s attorney, Laura Ilardi Pearson, “my superiors have directed me to request that the Court issue a formal order.”
In response, Judge Moran wrote in an order demanding the information: “The Secretary has repeatedly invoked its support for ‘transparency.’ It is in that spirit of transparency that the Court initially requested, and now Orders, the information in this instance.”
A second recent case involved Vermont Quarries Corp. and citations issued after a worker had his pelvis fractured in March 2013, while moving marble slabs. This isn’t the first injury at the quarry. A miner was injured in October 2010 when four slab pieces fell and caused extensive bruising to the miner’s neck and chest.
The company was cited under §57.3400, which requires that prior to secondary breakage operations, the material to be broken shall be positioned or blocked to prevent movement that would endanger persons in the work area.
According to Judge Moran, an acting foreman, with another miner, was attempting to push over marble slabs which weighed 1,000 lb. each, without installing wood cribbing between the free-standing slabs of marble, resulting in the injury to the miner.
The Secretary’s settlement motion sought to have the penalty reduced from $2,901 to $2,200, and the citation would be changed from a 104(d)(1) to a 104(a) citation. The settlement motion stated that no one from management had directed the miners, or was aware this was happening, and that the miners had been trained, but disregarded the policy, and were disciplined accordingly.
Judge Moran said the MSHA citation’s language made it clear that the acting foreman did not know the policy, and the miners were not trained, and that factual and legal disputes were not adequately explained.
The Secretary proposed 62 percent and 63 percent penalty reductions for violations of §57.3200 where the inspector found large ice build-ups around the portal and escapeway. The buildup measured as much as 15-ft. high, 30-ft. wide, and 3-in. thick. The company said it had planned to take care of the problem, but had not done so at the time of the inspection. The settlement motion claimed the company also claimed that it scaled the ice several times each day, a statement that conflicted with the MSHA citations.
Also rejected – a 70 percent reduction for a violation of the safe access standard §56.11001, where the Secretary said he would be able to refute the company’s claims. In each case, Judge Moran said, the Secretary did not identify “legitimate factual and legal disputes” it contends exist.
JACOBS FIELD SERVICES, 4/8/2015, FMSHRC(J) No. WEST 2014-96-M; 22 MSHN D-689
VERMONT QUARRIES, 6/2/2015, FMSHRC(J) No. YORK 2014-2-M; 22 MSHN D-1307