By Ellen Smith
In overturning a penalty imposed by ALJ David Barbour for a guarding violation, the Review Commission ruled that the plain language of the 2006 MINER Act mandates a minimum $2,000 penalty if a violation is due to an unwarrantable failure to comply.
Barbour lowered the penalty against Stansley Mineral Resources in a guarding case before him last June (19 MSHN 431).
The case stems from a 2010 inspection where MSHA found a miner shoveling material underneath a self-cleaning tail pulley in Stansley’s McCloskey Plant. The tail pulley was not guarded and needed to be cleaned about every two hours. It also needed to be greased every 40 hours. The inspector believed a miner could become entangled in the tail pulley and suffer severe injury or death.
ALJ Barbour found the violation to be S&S because the violation created a discrete safety hazard in that a miner could become entangled in the open and rapidly moving machinery. Miners used shovels about 3 ft. from the pulley, scraping away debris. If the shovel contacted the pulley, the miner could quickly be pulled into the machinery before he could let go of the shovel, the ALJ said.
There was a reasonable likelihood that the unguarded pulley would result in serious injury. The ground was uneven around the pulley, creating a slip hazard. The pulley is also a fluted piece of metal with sharp catch points that could easily snag a shovel or clothing or a person.
It was also an unwarrantable failure to comply with a mandatory safety standard, the ALJ ruled. The lack of a guard was an open and obvious condition, at about 10 in. off the ground. And it was apparent that the operator did not require the machinery to be shut down before re-greasing every 40 hours. It existed for more than a week and was very dangerous, he said, with the possibility of dismemberment or death. All of those factors indicated that the operator exhibited aggravated conduct constituting much more than ordinary negligence, the ALJ concluded.
However, Barbour lowered the penalty from MSHA’s proposed $2,000 to $1,000 based on the six penalty criteria. Barbour concluded the $2,000 penalty was excessive given the company’s small violation history, small size and good-faith abatement of the violation in a timely manner.
While penalty assessments are within the sound discretion of the ALJ, the 2006 MINER Act added provisions under Sections (3)(a) and 3(b) mandating minimum penalties of $2,000 for any citation or order issued under Sect. 104(d)(1) and a minimum $4,000 penalty for any 104(d)(2) order.
In addition, Sect. 3(b)(4) of the 2006 MINER Act contains language stating that, “if a court, in making such a review, sustains the order, the court shall apply at least the minimum penalties required under this subsection.”
The Commission noted that prior to this amendment, the Act had not specified a minimum penalty for 104(d) citations or orders.
In vacating Barbour’s penalty assessment, the Commissioners wrote that “Congress intended that the Commission adhere to the minimum penalty assessment amounts…” if the case were to go to a U.S. Court of Appeals, the court “would be required to reverse any final Commission decision imposing a penalty less than the relevant minimum amount in section 110(a)(3).”
While the Commissioners imposed the $2,000 minimum penalty, they found no other fault in Barbour’s reasoning underlying his assessment.
STANSLEY MINERAL RESOURCES INC., 5/9/2013, Docket No. LAKE 2011-693-M; 20 MSHN D-1697
Ellen Smith is the owner of Legal Publication Services, publisher of Mine Safety & Health News, www.minesafety.com. She has been covering mining issues since 1987 and has won 31 journalism awards for her reporting, including the 2010 Magnum Opus Award for Outstanding Achievement in Custom Media. Ellen can be reached at 585-721-3211, or at [email protected].