Review Commission ALJ Priscilla Rae assessed $30,000 in penalties against a recalcitrant sand and gravel operator, calling him to task for assaulting an MSHA inspector, and pointing out discrepancies between his stories and evidence submitted during the trial.
Judge Rae said that despite a November 2004 court order, Jay Jeppesen, owner of Jeppesen Gravel, has failed to cooperate with MSHA inspections, and said that his intentional and deliberate conduct, including criminal assault and battery, was intentional and deliberate and constitutes recklessness.
This particular case stemmed from inspections in May 2012 and October 2012 at the mine, which borders the state of Minnesota.
When the inspectors returned, either the violations had not been abated or Jeppesen denied the inspectors entry to the mine.
Judge Rae assessed a $4,000 penalty when two inspectors went to the mine on Oct. 1, 2012, and the owner told them to wait in their vehicle, and he called the sheriff. When the sheriff arrived and the inspectors attempted an inspection, the owner then blocked their way, moved into “close personal space,” and his son, Alan Jeppesen, held a recording device within one inch of the MSHA inspector’s face.
In assessing the $4,000 penalty, Judge Rae noted that Jeppesen had been previously cited for denial of entry in May 2004, June 2006, July 2006, August 2006, and July 2012.
Arrest the Inspectors!
In the October 2012, denial of entry, Jeppesan instructed the sheriff to arrest the two inspectors and tow their vehicle from their property. The sheriff refused to do so, and remained to keep the peace. The judge noted that at one point, the son pushed his shoulder into the inspector’s chest, and this was verified by the sheriff’s report and testimony.
Jeppesen did not deny this, but said he was angry with the manner in which the inspectors arrived on mine property. He said there were children playing on the road near the house, but the inspectors did not see any children. He also claimed that MSHA trespassed on a 3/4 mile private road, and that the MSHA inspectors should be compelled to use a helicopter to get to the mine site.
Rae called both assertions “an invention conjured up for trial,” and that it did not “warrant comment.” She also said the road used by MSHA is the road in his legal address, and the only means of access by motor vehicle.
The judge said Jeppesen’s “conduct was egregious and both his and his son’s actions constituted criminal assault and battery on [the inspector] as well as a violation of Section 103(a) of the Act. Their behavior was designed to intimidate and harass the inspectors and presented a real potential for physical harm had it not been for the presence of the deputy sheriff on the property during the inspection. There is no doubt Jeppesen’s conduct was intentional and deliberate and constitutes recklessness.”
Defending His Violations
In defending against his other violations, Jeppesen said he was denied an MSHA Compliance Assistance Visit (CAV), but Judge Rae said this was not a defense.
“Jeppesen neither contacted MSHA to request a CAV on any of the underlying citations or orders nor did he cooperate in any of the CAVs MSHA attempted to conduct in the past …. A CAV is available to an operator at the onset of operations or when putting new equipment or a new plant into service,” she said. “Any violations found are written up in a notice and the operator is given an opportunity to correct the conditions. If the corrections are not made in a relatively short period of time, the notice becomes a regular citation. Because Jeppesen had been in business for 20 to 30 years before the issuance of the initial underlying citations and orders, which did not encompass any new equipment recently put into service, he was not entitled to a CAV. Even if he had been, the issue is irrelevant as the conditions went unabated for many, many months and would have been converted into regular violations. MSHA’s failure to conduct a CAV would not have precluded the issuance of the subsequent withdrawal orders or the citations now at issue.”
Jeppesen also claimed he could not afford to make certain repairs, but that is not a defense to a violation, and is relevant only to the issue of the penalty, the Judge said.
It was also found that he continued to operate certain pieces of equipment, or failed to contact MSHA in order to terminate a withdrawal order. He said he was unaware of the requirement to contact MSHA to terminate a withdrawal order. In rejecting this, Judge Rae noted he had been given detailed instructions by the U.S. Attorney on how to properly contest violations, participate in close-out conferences, and the judge said she believed he “clearly understands the proper procedure for terminating prior citations and orders.”
In affirming all of the citations and orders, and the full amount of the penalties, the judge rejected Jeppesen’s argument that the proposed penalties would hinder his ability to stay in business, and submitted his “client copy” of tax returns for 2013 and 2014 as proof of his claim.
While it was noted that Jeppesen only has one employee, that employee is his son who was paid $85/hr. for manual labor. Judge Rae said he took “substantial undefined deductions on his income taxes for various expenses including costs of goods sold, depleted, repairs, other expenses and supplies to reduce his gross income by more than $200,000. He offered no information on financial obligations, and the judge said the evidence submitted was insufficient to prove his inability to continue in business.
Judge Rae also said that “despite the sizable deductions on his unverified income tax returns, and based on upon the unabated conditions the inspectors found that had existed for up to 14 months, he had not actually made any such expenditure he deducted as costs of goods sold, repairs etc. … it is readily apparent that many of the violative conditions could have been eliminated with little or no expense at all, making it even more apparent that Jeppesen’s claim of financial hardship is a ruse.”
- A $1,000 penalty was assessed for a non S&S violation of §56.12008 where a 480-volt electrical cable lacked proper fittings and bushings, the company had been cited for the violation, and 20 days later the violation still existed, and a withdrawal order was issued to take the cable out of service. When the inspectors returned nine months later, the cable was repaired, but Jeppesen could not say exactly when he made the repairs.
- Three guarding violations under §56.14107(a) were assessed penalties of $1,000 each where withdrawal orders had been issued. While the repairs were eventually made, the operator could not state exactly when the repairs were made, and therefore the mine had begun operating under a withdrawal order.
- While the operator claimed in one of the citations that the repairs had been made two years earlier, the citation had been issued only 14 months earlier. In another case, the guard had been partially repaired, but a PTO shaft to the dewatering pump still remained unguarded even after the withdrawal order.
- A $1,000 penalty was issued for a violation under §56.11001 for a lack of safe access to a water source used for priming the dewatering pump, and a withdrawal order had been issued. When the inspectors returned several months later, the violation had been abated, but MSHA was never notified of the abatement.
- A $1,000 penalty was issued for a violation of §56.11012 where an elevated travelway to the wash plant did not have a railing, barrier or cover over a large opening at a height of 7 ft. above ground level. The top of the ladder accessing the area was also not protected. When the inspectors returned 20 days later, the violation was still not corrected and a withdrawal order was issued. After the order, the operator placed a chain across the opening to the travelway, but this was not sufficiently stable and the condition remained unabated.
- A $1,000 penalty was issued for failing to abate a violation of §56.12018 where the main 480-volt electrical disconnect box for the wash plant was not properly labeled to show what it controlled. It was abated after a third inspection by the operator taking a “Sharpie” marker to label the disconnect.
- A $1,000 fine was issued for failing to perform a yearly inspection on a fire extinguisher in the office /electrical van violation of §56.4202(a)(1), and a failure to abate order was issued. The operator could have asked the local fire dept. to perform the inspection, or the operator could have purchased another extinguisher, but choose to do neither.
- A $5,000 fine was assessed for a 104(d)(2) berm violation under §56.9300(a). The violation was S&S and due to an unwarrantable failure to comply based on the extent of the violation and obviousness. When the MSHA inspector returned, there were still areas around the mine lacking berms, and in one case around the plant pond, there were visible tire tracks just feet away from a drop-off. The judge noted there were places the operator could have simply lowered the blade of the excavator to the ground and pushed material up into a berm, and it would have taken a few hours to abate the violation.
- A $3,000 penalty was assessed for a 104(d)(1) violation for failing to conduct a workplace examination of the wash plant. Notations on the pages of a calendar were being used to record examinations and several obvious and dangerous conditions that had been cited over a long period of time had not been addressed. The violation was assessed as S&S and unwarrantable failure. Jeppesen admitted to the violation and it was incorporated into the Dec. 11, 2013, settlement order.
- When the MSHA inspector returned to the mine in July 2013, Jeppesen was still not conducting workplace examinations of the wash plant but continued to use it. Based upon the volume of open and obvious violations found, it was readily apparent to the MSHA inspector that Jeppesen had not been performing the examinations. Jeppesen could provide no documentation of having done them.
- A violation of §56.12004 was assessed a $1,000 penalty, but the negligence was lowered from reckless disregard to high negligence where a 480-volt electrical cable was damaged due to weather and mechanical damage. Jeppesen should have replaced the cable with an outdoor-rated cable, but instead sprayed the damaged cable with “Flex Seal” a rubberized coating. The inspector initially designated the violation as “high negligence” but it was then changed to “reckless disregard.” Judge Rae said she did not think that spraying the cable was done in an attempt to fool the inspector. Rather, this was an attempt not to spend money on installing proper equipment, and to intentionally flaunt MSHA’s authority, and high negligence was appropriate.
- A violation of §56.4201(a)(1) was upheld and a $1,000 penalty assessed where a fire extinguisher had not been inspected, and when MSHA returned for a follow-up inspection, there was still no documentation or evidence that the extinguisher had been checked, which resulted in a 104(b) order. When the inspectors came back to the mine 10 months later, there was still no documentation of an inspection.
- A task-training violation was upheld and a penalty of $1,000 assessed where the owner had refresher training records for himself and his son, but did not have task training records for several new pieces of equipment on the property. If an individual mine owner has no employees, generally equipment manufacturers will provide the initial task training, but documentation is still required.
- A 104(d)(1) order was upheld and a $3,000 penalty assessed for a violation of §56.14100(a) for the continual failure to perform an adequate examination on the excavator. Numerous longstanding hazardous conditions were cited in previous MSHA inspections, and the company continued to operate the equipment without putting into place a pre-operation examination program.
- A $3,000 penalty was assessed for a berm violation under §56.9300(a). One area without a berm was 21-ft. long with a drop off of 4 ft., and a second area was 24-ft. long with a drop off of 4 ft. Tire tracks were observed in the areas, and the same condition had been cited on numerous inspections.
Judge Rae ordered Jay Jeppesen to pay the total of $30,000 in fines within 60 days of her decision and order.
JEPPESEN GRAVEL, 10/15/2015, FMSHRC(J) No. CENT 2014-298-M; 22 MSHN D-2339