Secretary of Labor v. Vulcan Construction Materials, LLC

Plain-English summary

The settlement resolved two citations at Vulcan's 115 Quarry. For an expired four-ounce bottle of eyewash in a first-aid kit, negligence was reduced from moderate to low and the penalty from $133 to $50. For a nonfunctioning truck backup alarm, the expected injury was changed from reasonably likely to unlikely and the S&S designation was removed, reducing the penalty from $183 to $133. Judge Moran questioned both the below-minimum eyewash penalty and the reliance on a backup camera as a reason to reduce the alarm citation, but approved the agreement under Commission precedent limiting judicial settlement review. Vulcan was ordered to pay $183 in total.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.15001 and 56.14132(a)
• Outcome: Both citations were modified and the $183 settlement was approved.
• Key point: The Judge criticized the settlement's deterrent value and backup-camera rationale but found the information sufficient under controlling Commission settlement decisions.

Full text (FMSHRC public release)

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 HEALTHADMINISTRATION (MSHA), Petitioner
v.

VULCAN CONSTRUCTION MATERIALS, LLC,Respondent |

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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.]

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9872489 |
$133.00 |
$50.00 |
Negligence modified from Moderate to low
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9872490 |
$183.00 |
$133.00 |
Injury modified from Reasonably likely to unlikely & S&S to Non-S&S
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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=1983
This 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 [email protected]

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

4401 N. Patterson Ave, Winston-Salem, NC 27105 [email protected]

[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.