US v. Bella Sand

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UNITED STATES DISTRICT COURT DISTRICT OF RHODE ISLAND

HILDA L. SOLIS, Secretary of Labor, United States Department of Labor, Plaintiff,

FILENO.:

137L

v.

BELLA SAND, LLC and ENRICO DIGREGORIO, Defendants.

COMPLAINT (Injunctive ReliefSought)

Plaintiff Hilda L. Solis, Secretary of Labor, United States Department of Labor, alleges: Jurisdiction, Parties, and Venue 1.

Thjs action is brought by Hilda L. Solis, Secretary of Labor, United States

Department of Labor ("the Secretary") under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. ยง 801, et seq., (hereinafter referred to as the "Act").

2.

Jurisdiction is founded upon ยง 108 of the Act, 30 U.S.C. ยง 818.

3.

Defendant Enrico DiGregorio ("Defendant DiGregorio") is the Manager of Bella

Sand, LLC, which owns a sand and gravel mine located on Rte. 102 in Glocester, Rhode Island within the jurisdiction of this Court.

4.

Defendant Bella Sand, LLC's principal place of business is located at 23

Business Park Drive, Smithfield, Rhode Island 02917, within the jurisdiction of this Court.

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Factual Allegations

5.

On March 3,2008, Mine Safety and Health Administration ("MSHA") Inspector

Dan Pullen arrived at Bella Sand and found it to be an active mine because the state of the pit and plant showed that Defendant DiGregorio had been operating the plant. Inspector Pullen performed a regular inspection and issued fifteen citations. The unsafe conditions identified by the MSHA inspector that formed the bases for the violations included: Mobile equipment operators did not sound a warning or use other effective means to warn employees in the area prior to moving their machines from the ready line, in violation of 30 C.F.R. 56.14200 (Citation #6063182) The travel alarm provided on the Komatsu PC400 LC excavator was not being maintained in a functional condition and would not sound when tested, in violation of 30 C.F.R. 56.1332a (Citation #6063183) The operator of the Atlas Copco ROC D7 drill rig was not wearing suitable protective footwear while working in the drill area of the quarry, in violation of30 C.F.R. 56.15003 (Citation #6063184) The Terex TA30 thirty ton haul truck operating between the quarry and primary crusher was not provided with a fire extinguisher to fight a fire in its early stage, in violation of 30 C.F.R. 56.4230a1 (Citation #6063185) There was no berm provided along the entire length of the left side of a stockpile composed of 1 ~ inch diameter stone, in violation of30 C.F.R. 56.9300a (Citation #6063187) Berms provided on either side of stockpile composed of % inch diameter stone were not mid-axle height of the equipment observed on the ramp, exposing the equipment operators to an overturning hazard, in violation of 30 C.F.R. 56.9300b (Citation #6063188)

The side guard provided for the self-clearing tail pulley on the return conveyor on the Nordberg HP400 cone crusher was not adequate in length to prevent accidental contact with the rotating fin and moving conveyor belt, in violation of30 C.F.R. 56.14107a (Citation #6063191)

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The daily examination of work areas for conditions that may adversely affect safety or health were not being recorded, in violation of30 C.F.R. 56.18002b (Citation #6063196) The hom provided as a safety feature on the Caterpillar 980G front-end loader was not being maintained in a functional condition leaving the operator with no means of sounding an audible warning, in violation of30 C.F.R. 56.14132a (Citation #6063197) The windshield on the Caterpillar 980G front-end loader was damaged to the extent that it obscured visibility necessary for safe operation, in violation of30 C.F.R. 56.14103b (Citation #6063198) The secondary braking function provided by a brake accumulator system on the Caterpillar 980G front-end loader was not being maintained, and would not function properly when tested, in violation of 30 C.F.R. 56.14101a3 (Citation #6063199) The positive and negative terminals on the Miller Bobcat 225 welder mounted on the Ford F-Super Duty flatbed service truck were not protected by insulating covers to prevent inadvertent contact, in violation of30 C.F.R. 56.12030 (Citation #6532906) The plant operator could not produce records showing that the continuity and resistance testing had been performed on the plant's electrical grounding system, in violation of 30 C.F.R. 56.12028 (Citation #6532910) 6.

On April 7, 2008, Inspector Denis Rickey went to the mine to terminate the

citations. (If violative conditions have been fixed by the mine operator or the cited conditions have been removed from the mine property or the mine has been placed in abandoned status, the citation can be terminated. Penalties are still assessed.) On April 25, 2008, Defendant DiGregorio signed and sent a closure letter to inform Inspector Rickey that the mine was closed and requested the mine be placed in abandoned status.

Consequently, Inspector Rickey

terminated the citations and changed the status of the mine to abandoned. On August 12, 2009, Inspector Reecle Hom visited the mine to check on the mine's status and observed, among other things, violative conditions that included missing handrails on both staircases leading to the CAT generator trailer and front loader and pick-up truck tracks on unprotected 480 volt power cables lying across the road. Inspector Hom advised the mine operator to correct these conditions.

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7.

On December 15,2010, MSHA Inspector John Zahner ("Inspector Zahner"),

performed an inspection of the mine pursuant to ยง 103(a) of the Act, 30 U.S.C. ยง 813(a).

Inspector Zahner was checking on the status of the mine and current reports that the mine was in operation.

8.

At 14:10, Inspector Zahner arrived at the mine to begin his inspection. No

minerals were being extracted from the sand and gravel pit and the stone plant was not operating at the time of inspection. Inspector Zahner entered the mine through the open gate and found a CAT 966F front-end loader in operation in the sand and gravel pit. The loader operator, Bill Cucino, was cleaning up the pit to prepare for the winter shut down. Mr. Cucino drove over to Inspector Zahner and upon his inquiry Mr. Cucino informed Inspector Zahner that the screen plant had been operated the previous week.

9.

Inspector Zahner asked Mr. Cucino ifhe could drive around the pit. Inspector

Zahner drove around the pit while Mr. Cucino went to the office trailer. Inspector Zahner proceeded to drive around the stone plant and observed small stockpiles under the stacking conveyors with large stone stockpiles adjacent to the plant. Inspector Zahner drove to the office trailer and asked Mr. Cucino when the last time the stone plant ran. Mr. Cucino replied that they had last run the stone plant a few months ago. Therefore, there had been activity at the mine despite its allegedly abandoned status.

10.

Inspector Zahner asked if the employees screened the gravel for sand and ran the

tailings through the stone plant. Mr. Cucino replied this was the exact procedure they followed.

Inspector Zahner asked to look at the screen plant. Mr. Cucino and Inspector Zahner walked around the screen plant and Inspector Zahner observed several violations.

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11.

Inspector Zahner inquired as to whether Mr. Cucino had received any general

training to work in the mine. Mr. Cucino had previously been employed by a mine operator in Massachusetts and indicated he received training several years ago. Inspector Zahner verbally issued an order of withdrawal pursuant to ยง 104(g)(l) of the Act, 30 U.S.C. ยง 814(g) to Mr. Cucino stating that Mr. Cucino could continue with Inspector Zahner on the inspection but Mr. Cucino could not operate any equipment because of his lack of timely training. (An order of withdrawal removes equipment and/or people from service. The only activity permitted is for conducting abatement.) After Mr. Cucino informed Inspector Zahner that the site normally began operations at 07:00, Inspector Zahner left the site.

12.

On December 16,2010, Inspector Zahner returned to Bella Sand to conduct a

regular inspection pursuant to ยง 103(a) of the Act, 30 U.S.C. ยง 813. Inspector Zahner entered the mine through the open gate at 08:30 and did not find anyone in the pit. After Inspector Zahner took a few photographs of stockpiles, he proceeded to Defendant DiGregorio's corporate office.

13.

Inspector Zahner arrived at the corporate office at 09:30 and asked the

receptionist to speak with someone in management or someone with whom he could continue the inspection. The receptionist told Inspector Zahner he would have to make an appointment with Defendant DiGregorio. Inspector Zahner then informed the receptionist that he does not make appointments for inspections because the Act forbids advance notice of inspections. Inspector Zahner asked the receptionist to inform management that he was on the site, and was giving them an opportunity to accompany him on the inspection. Inspector Zahner stated he would return to Bella Sand on his own if someone from management refused to accompany him on the inspection. The receptionist called Defendant DiGregorio because she did not know where he

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was, yet once she finished dialing his phone number a male voice answered a phone in the other room. Inspector Zahner asked the receptionist to have Defendant DiGregorio call him when he returned to the office.

14.

At 09:42 Inspector Zahner called his supervisor Robert Dow to infonn him of

what transpired in the office. Mr. Dow told Inspector Zahner to go ahead and inspect the plant without Defendant DiGregorio.

15.

At 10:25, Inspector Zahner arrived at Bella Sand. Inspector Zahner continued his

inspection of the mine by examining the McCloskey S190 sand screener and noted violations witnessed during his continued inspection of the mine. Inspector Zahner also noticed that tire tracks on the feed ramp appeared fresh, signifying the mine had been in operation despite its "abandoned" status. Inspector Zahner saw a bag of calcium flake on the sand stacker tailpulley.

Calcium flake is usually used in the industry to prevent the belts from freezing in the cold weather.

16.

Inspector Zahner moved to the crushing plant where he observed numerous

violations, in particular broken ladders and electrical violations. A number of guards were missing from the portable sand stacker and screen feeder conveyor on the McCloskey portable screen plant. Inspector Zahner wanted to speak to Defendant DiGregorio before issuing citations for violations because the guards could have been removed for maintenance. Inspector Zahner also observed that no lock outs were in place on either the main control panels for the portable plants or the CAT generator.

17.

Inspector Zahner called his supervisor Mr. Dow at 12:49 to infonn him of the

number of violations he witnessed on or at the crushing plant. Mr. Dow instructed Inspector

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Zahner to ask the company where the guards were and then write a citation for every guard they could not produce.

18.

At 12:52, Defendant DiGregorio called Inspector Zahner while he was conducting

his inspection of the mine. Defendant DiGregorio told Inspector Zahner there was nothing to inspect because they were closed, though he admitted that he runs the plant once a month so that the bearings do not seize up. Defendant DiGregorio proceeded to hang up the phone without finishing their conversation.

19.

Defendant DiGregorio called again at 13:01 asking Inspector Zahner why he was

on Defendant DiGregorio's property and that he had no right to be at Bella Sand. Inspector Zahner informed Defendant DiGregorio he had a right of entry to the property pursuant to 30 U.S.C. ยง 813(a). Defendant DiGregorio responded by threatening to call the police. Inspector Zahner informed Defendant DiGregorio of the Act and Defendant DiGregorio asked Inspector Zahner to wait for someone to accompany him on his inspection.

20.

Tony DiGregorio, dispatcher, and Jim Shaw, mechanic, accompanied Inspector

Zahner on his inspection. Neither Mr. DiGregorio nor Mr. Shaw had any problems with the validity of the observed violations. Mr. DiGregorio and Mr. Shaw informed Inspector Zahner that another MSHA inspector had previously pointed out similar violations, though no one at the mine had made any repairs.

21.

Inspector Zahner asked to review the Training Plan, HazCom Plan, First Aid/CPR

training records, all other Training Records, and a Record of the last Continuity and Resistance Test of grounding systems. Defendant DiGregorio never provided these records for Inspector Zahner to review.

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22.

On December 20,2010, Inspector Zahner returned to the site at 14:45 to write

citations outside the gate and waited to see if anyone would show up at the pit. At 17:38, Inspector Zahner received a call from Defendant DiGregorio telling the Inspector to not return to the corporate office, and that the mine was closed. Defendant DiGregorio told Inspector Zahner he could not continue his inspection. Inspector Zahner informed Defendant DiGregorio this constituted a denial of entry. Defendant DiGregorio became enraged and repeated that the plant was not in operation, and he indeed denied Inspector Zahner's entry to the mine. Inspector Zahner issued the denial of entry citation at 17:40 pursuant to his supervisor's instruction.

23.

On December 21,2010, Inspector Zahner issued thirty-seven citations for

violations pursuant to ยง 104(a) of the Act, 30 U.S.C. ยง 814(a), one ยง 104(g)(1) order of withdrawal, and thirty-seven ยง 104(b) orders of withdrawal because citations from previous inspections of the mine had not been abated. These were delivered to Defendant DiGregorio by certified mail on December 22, 2010 out of concern for Inspector Zahner's safety due to Defendant DiGregorio's confrontational tone and conduct. The unsafe conditions identified by the MSHA inspector that formed the bases for the violations included, but are not limited to the following: A missing tailpulley guard on a sand stacker in violation of30 C.F.R. 56.14112b. The same condition was cited during the 2008 inspection (Citation #8644432) Handrails were missing on both the staircases leading to the CAT generator trailer in violation of 30 C.F.R. 56.11002. This same condition was witnessed and discussed with the mine operator during an E28 inspection performed on the site in 2009 (Citation #8644449) Four hundred and eighty volt power cables were found across the road with nothing to protect them from mobile equipment, while the front end loaders and pick up trucks were evidenced on the electrical cables at the time of inspection, in violation of 30 C.F.R.

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56.12005. The same condition was witnessed and discussed with the mine operator during an E28 inspection performed on the site in 2009 (Citation #8644454) The continued mining operations at the site despite a closure letter sent by Defendant DiGregorio on April 25, 2008 requesting the mine be placed in abandoned status in violation of30 C.F.R. 56.1000 (Citation #8644431) 24.

The state of the pit and the processing plant as observed during the inspection

establish that the pit and plant are not permanently closed or abandoned; they are active mining areas and facilities.

25.

The refusal of Defendants, their agents and employees to permit authorized

representatives of the Secretary of Labor to conduct safety and health inspections constitutes a continuing threat to the health and safety of the miners and other persons in or about the mine and interferes with, hinders and delays the Secretary or her authorized representatives in carrying out the provisions of the Act. 26.

Plaintiff has no adequate remedy at law.

Prayer for Relief

27.

WHEREFORE, the Secretary respectfully prays that Defendants and their agents,

servants, and employees, and all persons in active concert with Defendants be permanently enjoined from interfering with, hindering, and delaying the Secretary of Labor or her authorized representatives in carrying out the provisions of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. ยง 801 et seq., specifically including, but not limited to: (i)

refusing entry into any portion of the mine or equipment thereon to authorized

representatives of the Secretary of Labor who are attempting to conduct inspections authorized by the Act;

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(ii)

interfering with, hindering, or delaying authorized representatives of the Secretary

in carrying out the provisions of the Act; (iii)

refusing and/or failing to provide relevant documents or information upon request

by authorized representatives of the Secretary; (iv)

refusing to provide reasonable assistance to authorized representatives of the

Secretary of Labor who are attempting to conduct inspections authorized by the Act; (vi)

violating Orders issued by the Secretary of Labor under the Act.

The Secretary further requests any other relief the Court may deem just and proper.

M. Patricia Smith Solicitor of Labor Michael D. Felsen Regional Solicitor

Post Office Address: U.S. Department of Labor Office of the Solicitor JFK Federal Building Room E-375 Boston, MA 02203 TEL: (617)565-2500 FAX: (617)565-2142 sullivan.kevin@dol.gov

Attorney U.S. Department of Labor Attorneys for Plaintiff

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