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MSHA Violations: Arnold Stone, Inc, 36 FMSHRC 1746 (July 20, 2016) (ALJ Miller)

This case involved a significant and substantial and permanently disabling violation issued under Section 104(d) alleging a violation of 30 C.F.R. Section 56.14100(b). The negligence was initially listed as high but was later modified to reckless disregard and the Secretary proposed a special assessment of $63,000.00. The regulation states that “[d]efects on any equipment, machinery, and tools that affect safety shall be corrected in a timely manner to prevent the creation of a hazard to person.”

The enforcement action at issue in this matter was based on a non-functioning safety lockout on a skid-steer used to move stone at Arnold Stone’s Tolar surface mine in Hood County, Texas. The safety lockout was designed to prevent the skid-steer from operating when the seatbelt was not connected. The Arnold Stone miner operating the skid-steer at the time of the inspection told the MSHA inspector the safety lockout originally was an intermittent problem but became permanent in the months leading up to the inspection. The miner also stated the defect was reported to management who allegedly responded by telling miners to operate the machine because the problem was too expensive to correct. Mine records examined at the site did not list the safety lockout as a defect.

A lead man for Arnold Stone, who traveled with the MSHA inspector, disagreed that the safety lockout had been defective for an extended period of time. He personally operated the skid-steer just a few weeks prior to MSHA’s inspection and stated the machine functioned properly. Interestingly, the lead man was eventually terminated by Arnold Stone after the safety lockout incident. Given the conflicting statements offered regarding the duration of the safety lockout problem ALJ Miller ultimately credited the MSHA inspector and found that the safety lockout had been inoperable for at least one year.

To establish the violation ALJ Miller stated MSHA was required to prove the skid-steer had a defect which affected safety and the defect was not corrected in a timely manner. During the litigation the parties did not dispute that the safety lockout was inoperable at the time of MSHA’s inspection. ALJ Miller held the condition did affect safety as the lockout was designed to prevent the machine from inadvertent motion. ALJ Miller further held that Arnold Stone was aware of the defective lockout for at least eighteen months. Subsequently, she found the Secretary had proven the violation.

ALJ Miller also upheld the significant and substantial finding in the violation. With respect to the modified finding of reckless disregard ALJ Miller began by analyzing the employment status of the lead man who accompanied the MSHA inspector during the inspection. This individual identified himself to the MSHA inspector as the “site supervisor” and also as a lead man. Interestingly, the MSHA inspector determined he was not a supervisor of Arnold Stone. ALJ Miller was quick to change the individual’s designation because he was the person in charge at the Tolar site with authority to hire, fire, and train miners. Although this individual did not direct the work force ALJ Miller, citing Nelson Quarries, Inc., 31 FMSHRC 318, 328 (Mar. 2009); Whayne Supply Co., 19 FMSHRC 447, 450 (Mar. 1997); Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991), nevertheless found him to be the person in charge at the mine and therefore his negligence was imputable to Arnold Stone for purposes of penalty assessment and unwarrantable failure designations.

In a awkward review of MSHA’s modified negligence finding in the case ALJ Miller began her analysis by identifying the five categories of negligence set forth in 30 C.F.R. Section 100.3, Table X. However, she quickly abandoned application of the Part 30 negligence definitions and focused instead on the Commission’s holding in Brody Mining, LLC, 37 FMSHRC 1687, 1701 (Aug. 2015) (finding the definitions of negligence in 30 C.F.R. Section 100.3 apply to the Secretary’s proposal of penalties only and are not binding on the Commission.) Citing Brody ALJ Miller applied a traditional negligence analysis which she held finds an operator negligent if it fails to meet the high standard of care established under the Mine Act. ALJ Miller then opined that the facts established Arnold Stone did not meet the required high standard of care and accordingly a finding of high negligence was warranted and not reckless disregard.

Also, after a comparison of the relevant facts of the case against the aggravating factors considered in the unwarrantable failure analysis, ALJ Miller found inadequate evidence to establish an unwarrantable failure to comply on the part of Arnold Stone. More to the point, ALJ Miller found that while some aggravating factors were present in the case, a number of factors weighed against a finding of unwarrantable failure: the length of time that the loader remained in an unsafe condition was uncertain; the extent of the violation was limited and it did not pose a high degree of danger; the individual with authority to repair the defect was not aware of it; and Arnold Stone had no notice that greater efforts were needed for compliance. Based on the above findings she modified the reckless disregard finding to high negligence but did not find the violation a result of an unwarrantable failure to comply. She assessed a civil penalty of $10,000.00. The case is currently on review before the Commission. 

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About this Author

Robert Huston Beatty Jr, Dinsmore Shohl Law Natural Resources Litigation, lawyer
Partner

Robert Huston Beatty, Jr. is a member of the Natural Resources Practice Group. Bob represents mine operators before federal and state administrative agencies, federal courts, and state courts. He also provides pre-enforcement consulting services, including comprehensive training for mine managers and safety professionals.

Education

J.D., West Virginia University College of Law (1993)
B.A., West Virginia University (magna cum laude, honors scholar, 1990)

Bar Admissions

West Virginia

304-225-1412
Jason M. Nutzman, Dinsmore Law, Labor Lawyer, Mine Safety Attorney
Partner

Jason Nutzman is a member of the Labor & Employment Department and Mine Safety & Health Practice Group. Jason represents clients before the Federal Mine Safety and Health Review Commission in accident investigations, special investigations, and discrimination investigations conducted by the Department of Labor with respect to the
Mine Safety and Health Act.

In his practice, he works with human resource managers and in-house counsel providing employment advice and litigation support to employers. Jason also provides employment counseling to employers from the beginning of the employment relationship through termination and employment advice covering all types of discrimination and wrongful discharge, FMLA, ADA, ADEA and FLSA issues, and non-compete agreements. Jason is also experienced in representing clients regarding labor issues, including dealing with unions during a labor campaign and assisting management with a unionized workforce.

(304) 357-9938
Max Corley, Labor, Employment Practice, attorney, Dinsmore Shohl, law firm
Partner

Max Corley is a Partner in the Labor Department and a member of the Employment Practice Group. His practice is focused on the defense of clients in federal and state coal mine safety and met/nonmetal safety regulatory matters before federal and state administrative agencies, federal court and state courts and civil defense litigation. Max regularly represents mine operators and contractors in the coal industry and in the metal/nonmetal sector of MSHA enforcement, including mine operators, quarry operators and producers of various metals, stone, sand, gravel and other...

304-357-9945
Lorna M. Waddell, Dinsmore, Of Counsel mine safety and health lawyer
Of Counsel

Lorna Waddell is a member of the Labor and Employment Department. She practices in the area of mine safety and health. 

Prior to joining the firm, Lorna worked for two separate law firms in Morgantown for a total of 13 years. After graduating from law school, she served as law clerk for the late Honorable Robert E. Maxwell, United States District Court for the Northern District of West Virginia. Lorna has also served as an adjunct lecturer on appellate advocacy at West Virginia University College of Law.

304-225-1448