Acme Gravel Company, Inc.

Plain-English summary

The ALJ decided three civil penalty proceedings involving Acme Gravel Company and Barber Brothers Contracting Company. Two cases were settled, with penalties of $200 for an unsafe dredge access condition and $450 for an unworn seat belt, and both settlements were approved. The third case involved a late notice to MSHA about a change in the person responsible for health and safety at a mine. The judge found that the company mailed written notice within 30 days, so the citation was vacated and the proposed penalty was denied.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.11001, 56.14130(g), and 41.12
• Outcome: The CENT 92-113-M and CENT 92-153 proceedings were settled for $200 and $450. The CENT 92-118-M citation was vacated and its proposed penalty was denied.
• Key point: Written notice mailed within the regulatory 30-day period satisfied the reporting requirement even though MSHA received the letter later.

Full text (FMSHRC public release)

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SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 92-113-M
Petitioner : A.C. No. 16-01094-05514
v. :
:
ACME GRAVEL COMPANY, INC., : Tynes Island Mine
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 92-118-M
Petitioner : A.C. No. 16-01201-05504
v. :
: Asphalt Plant #5
BARBER BROTHERS CONTRACTING : Rock Crusher
COMPANY, :
Respondent :
:
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 92-153-M
Petitioner : A.C. No. 16-01217-05507
v. :
: Kent #2
ACME GRAVEL COMPANY :
INCORPORATED, :
Respondent :

                           DECISIONS

Appearances: Ernest Burford, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas, for the
Petitioner;
John N. Fetzer, III, Esq., Baton Rouge, Louisiana,
for the Respondents.

Before: Judge Koutras

              Statement of the Proceedings

 These proceedings concern proposals for assessments of civil

penalties filed by the petitioner against the respondents
pursuant to section 110(a) of the Federal Mine Safety and Health

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Act of 1977, 30 U.S.C. 820(a), seeking civil penalty
assessments for three (3) alleged violations of certain mandatory
safety standards found in Part 56, Title 30, Code of Federal
Regulations. The respondents filed timely contests and answers
denying the violations, and the cases were heard in Baton Rouge,
Louisiana. The parties were afforded an opportunity to file
posthearing briefs, but they did not do so.

                          Issues

 The issues presented in these proceedings are (1) whether

the conditions or practices cited by the inspectors constitute
violations of the cited mandatory safety standards, (2) whether
two of the alleged violations were "significant and substantial"
(S&S) and resulted from an "unwarrantable failure" to comply with
the cited standards, and (3) the appropriate civil penalties to
be assessed for the violations, taking into account the statutory
civil penalty criteria found in section 110(i) of the Act.

      Applicable Statutory and Regulatory Provisions

 1. The Federal Mine Safety and Health Act of 1977,
 30 U.S.C.  301, et seq.

 2.   Sections 110(a), 110(i), and 104(d) of the Act.

 3.   Commission Rules, 29 C.F.R.     2700.1, et seq.

                       Stipulations

 The parties stipulated to the following (Tr. 6-11):

 1. The respondents and the mines in question are subject to
 the jurisdiction of the Act.

 2. The presiding Judge has jurisdiction to hear and decide
 these matters.

 3. The assessment of civil penalties for the violations in
 question will not adversely affect the ability of the
 respondents to continue in business.

 4. The respondents exercised good faith in timely abating
 all of conditions or practices cited as violations.

 5. The history of prior violations for the mines in
 question are reflected in three MSHA computer print-outs
 identified and received as hearing exhibits P-1 through P-3.

 With regard to the settlement disposition of two of the

cases, the parties agreed that the following language should be

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included as part of the settlement agreements reached by the
parties and approved by the presiding Judge (Tr. 24, 40):

 Except for these proceedings and matters arising out of
 these proceedings, and any other subsequent MSHA
 proceedings between the parties, none of the foregoing
 agreements, statements, findings, and actions taken by
 the respondent shall be deemed an admission by the
 respondent of the allegations contained within the
 citations and the petition for assessment of penalty.
 The agreements, statements, findings, and actions taken
 herein are made for the purpose of compromising and
 settling this matter economically and amicably and they
 shall not be used for any other purpose whatsoever
 except as herein stated.

                       Discussion

Docket No. CENT 92-113-M

 This case concerns a section 104(d)(1) Citation No. 3896665,

issued on September 19, 1991, by MSHA Inspector Stephen C.
Montgomery, citing an alleged violation of mandatory safety
standard 30 C.F.R. 56.11001. The cited condition or practice
is described as follows:

 Safe access to the six (6) inch dredge was not
 provided. A four (4) feet by eight (8) feet starfoam
 pontoon was being used by the dredge operator to get to
 and from the dredge. The dredge was approximately
 forty (40) feet to fifty (50) feet from the pit bank
 and the depth of the water was approximately fifteen
 (15) feet. The dredge operator would "hand-pull"
 himself to and from the dredge with a rope that was
 anchored to the ground and tied to the dredge. The
 flat bottom aluminum boat that had been used for
 transportation, had been lost several months ago when
 the river had risen and flooded the property. The
 dredge operator said he always wore a life jacket when
 he was on the pontoon. A life jacket was lying on the
 pontoon when it was observed next to the pit bank.

 Mr. Frank Panepinto, Foreman, stated he had "told the
 dredge operator to stop using the pontoon", for
 transportation, "sometime ago". Mr. Panepinto stated
 the "10 inch" dredge operator was supposed to carry the
 "6 inch" dredge operator back and forth to the "6
 inch" when needed. The "10 inch" dredge operator had a
 flat bottom aluminum boat to use for transportation on
 the water. The "10 inch dredge was approximately three
 hundred (300) to four hundred (400) feet from the
 "6 inch" dredge.

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This was an unwarrantable failure on the company and
Mr. Frank Panepinto for not assuring the pontoon was
not still being used for transportation and not
providing a boat to be used for transportation for the
"6 inch" dredge.

Docket No. CENT 92-153

 Section 104(d)(1) "S&S" Citation No. 3896761, issued on

December 31, 1991, by MSHA Inspector Benny W. Lara, cites an
alleged violation of mandatory safety standard 30 C.F.R.
56.14130(g), and the cited condition or practice is describe
as follows:

    The seatbelt was not being worn by the operator of the
    D6 Cat Dozer, serial No. 3N61185. The operator assumed
    the buckle was missing. It was discovered wedged
    behind the seat. The employee stated he had only been
    working for this company about 6 months and had no
    training when hiring on. He stated it had a buckle one
    month ago and during operation one day a rag was tied
    to the buckle position (no buckle observed). Thought
    it was gone and used the rag. Frank V. Panepinto
    stated he has never checked to see if the belts were
    worn. The only time belts were discussed with the
    employees was when MSHA held a safety meeting during
    the last inspection. This is an unwarrantable failure.
    This machine was being used to push sand which is 12'
    off the ground or more.

Docket No. CENT 92-118-M

 Section 104(a) non-S&S Citation No. 3628839, issued on

September 18 1991, by MSHA Inspector Joe C. McGregor, cites an
alleged violation of mandatory reporting standard 30 C.F.R.
41.12 and the cited condition or practice is described a
follows:

    A change of person in charge of Health and Safety at
    the mine occurred and notification of change was not
    sent in to MSHA. MSHA Form 2000-7 is required to be
    updated when such changes occur. A citation for this
    violation was issued by another inspector 3/26/91.


                   Findings and Conclusions

Docket No. CENT 92-113-M

 Counsel for the parties informed me that they reached a

proposed settlement in this case, and they jointly moved for my
approval of the settlement. The initial proposed civil penalty

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assessment was $250, and the respondent agreed to pay a civil
penalty assessment of $200, with no changes in the citation as it
was originally issued (Tr. 11, 23) Inspector Montgomery, who was
present in the courtroom, explained the circumstances under which
he issued the citation in question (Tr 15-18). The respondent's
counsel pointed out that a boat was in fact being used to
transport miners to the dredge and that the inspector admitted
that he did not actually observe anyone using floatation devices
that are normally used to float pipeline as a means of access to
the dredge. Counsel further asserted that the respondent does
not condone the use of styrofoam pontoons by its employees as a
means of access to the dredges, and if an employee engaged in
such conduct he did it on his own without any direction or
instruction by the respondent. Counsel also indicated that the
respondent provided two boats for transportation to the dredges,
but that one was lost in a flood, and that a replacement boat has
been purchased and two boats are presently available at the site
for access to the dredges (Tr. 18-23).

 After careful consideration of the information contained in

the pleadings, the stipulations with respect to the six statutory
civil penalty criteria found in section 110(i) of the Act, the
arguments and testimony presented in support of the proposed
settlement of this case, and pursuant to Commission Rule 30,
29 C.F.R. 2700.30, the settlement was APPROVED from the bench
(Tr. 24, 28). My bench decision in this regard is herein
REAFFIRMED.

Docket No. CENT 92-153-M

 The parties proposed to settle the seat belt violation which

is in issue in this case, and the respondent agreed to pay a
civil penalty assessment of $450. The initial proposed penalty
was $600. In support of the settlement, the petitioner's counsel
stated that the equipment in question was being used on level
ground, and although a seat belt was provided, the equipment
operator was not using it (Tr. 29-31). The respondent's safety
director testified that the employee in question has been
discharged for failing to follow company written policy requiring
the wearing of a seat belt when the equipment is in operation
(Tr. 31).

 MSHA Inspector Bennie Lara, the inspector who issued the

citation and who was present in the courtroom, confirmed that a
seatbelt was present but that the equipment operator was not
using it. The inspector stated that the belt was found tucked
behind the seat and that the employee was using a rag to tie the
belt together, rather than the normal buckle used for that
purpose (Tr. 32-37).

 After careful consideration of the pleadings and arguments

in support of the proposed settlement, including the fact that

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the respondent's history of prior violations does not include
prior seat belt violations, and pursuant to Commission rule 30,
29 C.F.R. 2700.30, the settlement was APPROVED from the bench
(Tr. 38). My bench decision in this regard is herein REAFFIRMED.

Docket No. CENT 92-118-M

Fact of Violation. Citation No. 3628839.

 Mandatory reporting standard 30 C.F.R.   41.10, which

implements the statutory report filing requirement found in
Section 109(d) of the Mine Act, requires a mine operator to
submit a properly completed Legal Identity Report Form
No. 2000-7, to MSHA. Pursuant to the language found in section
41.10, the submission of this form constitutes adequate
notification of legal identity. One of the items required to be
included as part of the operator's legal identity notification
pursuant to section 41.11, is the name of the person in charge of
health and safety at the mine. If any changes are made with
respect to the person placed in charge of health and safety,
section 41.12, requires the operator to notify MSHA of the change
in writing within 30 days after the occurrence of the change.
Pursuant to section 41.13, any failure by an operator to notify
MSHA in writing of any change is considered a violation of
Section 109(d) of the Act and subject to a civil penalty as
provided in section 110 of the Act.

 The evidence in this case reflects that Inspector McGregor

visited the plant site on September 13, 1991, and the plant was
not in operation. The inspector requested to speak to Mr. Dave
Jones, the individual purportedly in charge of safety and health,
and after being informed that Mr. Jones was no longer assigned to
the site, the inspector left. He next returned on September 18,
1991, and spoke with foreman Clint Johnson who confirmed that he
had replaced Mr. Jones as the responsible health and safety
person in charge, and that this had occurred "two or more months"
earlier. Based on this information, and without further
documentation or verification of the actual date that Mr. Johnson
replaced Mr. Jones, the inspector concluded that the change had
taken place more than 30 days earlier and had not been reported,
and for this reason, he issued the citation (Tr. 46-48, 53). The
inspector confirmed that Mr. Johnson called the respondent's risk
manager, Mr. Frank Panepinto, and advised him that the citation
was issued (Tr. 53).

 Inspector McGregor identified a copy of a letter dated

September 17, 1991, addressed to MSHA's District Office in
Dallas, Texas, with a courtesy copy to the inspector's local MSHA
office in Denham Springs, Louisiana, from the respondent's Risk
Manager, Frank J. Panepinto, advising MSHA that Mr. Johnson
replaced Mr. David Jones as plant foreman on August 19, 1991
(Exhibit P-4). The inspector confirmed that the courtesy copy of

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the letter was received in his office, and he identified the
envelope the letter came in and confirmed that it is postmarked
September 19, 1991 (Exhibit P-5). He also confirmed that he made
the notation "Aug. 19 to Sept. 19 is 31 days" which appears on
the face of the envelope (Tr. 49-51). The inspector believed
that the respondent should have notified MSHA of the change in
question by September 18, 1991, which would have been within the
30-day notification requirement found in section 41.12. However,
since the envelope containing the notification letter was
postmarked September 19, 1991, one day later, the inspector
believed that this constituted a violation of section 41.12
(Tr. 49-50).

 MSHA's counsel confirmed that the inspector received a fax

copy of the Panepinto letter of September 17, 1991, from MSHA's
Dallas office after he received the copy addressed to his local
field office (Exhibit P-4, Tr. 75). The inspector did not
contact the Dallas office to determine when it actually received
the letter which Mr. Panepinto mailed to that office. At the
conclusion of the hearing, the inspector produced a copy of an
updated MSHA Legal Identity Report signed by Mr. Panepinto on
September 30, 1991, and the "Effective Date of Changes" shown on
the face of the report states "September 17, 1991" (Exhibit
ALJ-1). The respondent's counsel stipulated that this form was
submitted by Mr. Panepinto after the citation was issued in
response to MSHA's request, and that the September 17, 1991, date
may have been the date the report was prepared. Counsel stated
that MSHA took the position at that time that any changes must be
reported by using the MSHA Legal Identity Form and that a letter
was insufficient (Tr. 76). A copy of the inspector's "subsequent
action" terminating the citation on October 25, 1991, reflects
that it was terminated after "a new updated legal identity report
has been received in the district manager's office".

 At the request of the respondent, the record in this case

was left open in order to afford the parties an opportunity to
inquire further as to precisely when the MSHA Dallas District
Office may have received the Panepinto letter of September 17,
1991 (Tr. 60, 70). On October 7, 1992, I issued an Order
affording the parties additional time within which to submit any
further information or any posthearing briefs. However, the
parties failed to file anything further and my decision in this
case is based on the current record.

 Mr. Panepinto produced a copy of a company employment and

promotion form which reflects that Clint Johnson was promoted to
plant foreman on August 19, 1991 (Exhibit R-1). Mr. Panepinto
identified a copy of his September 17, 1991, letter which he
addressed and mailed to MSHA's Dallas district office that same
day, with a copy to Inspector McGregor's local field office in
Denham Springs, Louisiana, advising MSHA of the change of the
person in charge of health and safety at the plant (foreman

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Johnson), and he confirmed that he signed and mailed the letter
within 28 or 29 days after the change (Tr. 54-58). Absent any
evidence to the contrary, I believe it is reasonable to conclude
that Mr. Panepinto mailed the letter after being informed of the
inspector's inquiry at the mine site during his inspection and
the fact that he issued a citation.

 Respondent's counsel argued that although it seems clear

from the language found in regulatory section 41.12, that MSHA
must be notified of any changes "within thirty days after the
occurrence of any change", there is nothing in that regulation
that states that the notification must be received by MSHA's
District Office within 30-days after the change. Since the
unrebutted evidence establishes that the Panepinto letter of
September 17, 1991, was written and mailed within the 30-day
period, counsel concluded that the respondent has substantially
complied with section 41.12 (Tr. 65-67).

 MSHA's counsel agreed that the issue in this case is whether

or not the filing of the September 17, 1991, letter by
Mr. Panepinto advising MSHA that Mr. Johnson replaced Mr. Jones
as the responsible health and safety person at the mine was
complete upon mailing, or upon receipt of the letter by MSHA
Tr. 51). Counsel further agreed that if Mr. Panepinto's letter
was received by MSHA'S Dallas office on September 18, 1991, the
respondent would be in compliance with the 30-day notification
requirement found in section 41.12 (Tr. 64). Counsel suggested
that in the event the respondent could establish that the Dallas
office timely received the letter by September 18, 1991, he would
move to withdraw the civil penalty proposal (Tr. 72).

 The contested citation issued by Inspector McGregor cites an

alleged violation of section 41.12, and included as part of the
description of the violative condition or practice is a statement
by the inspector that "MSHA Form 2000-7 is required to be updated
when such changes occur". However, the theory of MSHA's case is
that the respondent did not comply with section 41.12, because
the Panepinto letter of September 17, 1991, was received in the
inspector's field office on September 19, 1991, one day after the
30-day notice period for informing MSHA of the change in question
expired. Neither the inspector or MSHA's counsel advanced any
testimony or arguments that the citation was based on the
respondent's failure to timely submit an updated MSHA
Form 2000-7, or that a notification by letter, rather than the
form, was insufficient or unacceptable. Indeed, when this
question was raised by the presiding judge at the conclusion of
the hearing after Inspector McGregor volunteered a copy of the
updated Form 2000-7, which apparently served as the basis for the
termination of the citation, MSHA's counsel took the position
that notification of any changes transmitted by letter is
sufficient to comply with section 41.12, and that the submission
of the form is not necessary to achieve compliance (Tr. 78).

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I find nothing in section 41.12, that requires the use of an
MSHA report form to notify MSHA of any changes in the required
legal identity information provided by a mine operator. That
section simply requires written notification to MSHA within
30 days after the occurrence of any change. However, I take note
of the fact that section 41.20, requires an operator to file
"notification of legal identity and every change thereof" with
the appropriate MSHA district manager, "by properly completing,
mailing, or otherwise delivering Form 2000-7 legal identity
report".
The respondent is not charged with a violation of
section 41.20, for failing to submit an updated Form 2000-7,
reporting a change in the person responsible for health and
safety at the mine site in question. As noted earlier, MSHA's
case is based on its assertion that the respondent's letter of
notification, which MSHA concedes was an acceptable method of
notification pursuant to the cited section 41.12, was received
one day late. Assuming that section 41.20, can be interpreted to
apply to section 41.12, notification could still be accomplished
by simply completing and mailing the form to MSHA's district
manger.

 On the facts of this case, and considering the position

taken by MSHA, I conclude and find that the evidence presented
establishes that the respondent provided the requisite written
notification of the change in question within 30 days after it
occurred, and that the preparation and mailing of the
notification letter by Mr. Panepinto within this time frame
constituted adequate compliance with section 41.12, notwith-
standing the fact the letter was received more than 30 days
after the change took place, and that the method of transmitting
the information was by letter rather than an MSHA form. Under
the circumstances, I further conclude and find that MSHA has
failed to establish a violation, and the citation IS VACATED.

                             ORDER

 In view of the foregoing findings and conclusions, IT IS

ORDERED AS FOLLOWS:

    1. Docket No. CENT 92-113-M. The respondent shall pay a
    civil penalty assessment of $200, in satisfaction of
    Section 104(d)(1) Citation No. 3896665, September 19, 1991,
    30 C.F.R.   56.11001.

    2. Docket No. CENT 92-153. The respondent shall pay a
    civil penalty assessment of $450, in satisfaction of
    Section 104(d)(1) Citation No. 3896761, December 31,
    1991, 30 C.F.R.   56.14130(g).

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    3. Docket No. CENT 92-118-M. The contested Section 104(a)
    Citation No. 3628839, IS VACATED, and the petitioner's
    proposed civil penalty assessment for this alleged violation
    IS DENIED AND DISMISSED.

 Payment of the aforesaid civil penalty assessments shall be

made by the respondent to MSHA within thirty (30) days of the
date of these decisions and Order, and upon receipt of payment,
these proceedings are dismissed.

                               George A. Koutras
                               Administrative Law Judge

Distribution:

Ernest A. Burford, Esq., Office of the Solicitor, U.S. Department
of Labor, 525 South Griffin Street, Suite 501, Dallas, TX 75203
(Certified Mail)

John H. Fetzer, III, Esq., P.O. Box 65121, Baton Rouge, LA 70896
(Certified Mail)

Mr. Frank J. Panepinto, Barber Brothers Contracting Company,
Inc., P.O. Box 66296, 2636 Dougherty Drive, Baton Rouge, LA
70896 (Certified Mail)

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